Diet Sabya – The New Call Out On Copyright And Fashion

The motifs on my jackets were hand-drawn and hand-embroidered. The collection is still selling, and one piece is sold for Rs. 40,000. However, one brand is re-creating the motifs as digital prints and selling it for Rs. 1,500.

                                               – Designer Rahul Mishra in an interview to Times of India on 13 May 2018.

‘Inspiration’, ‘Homage’ and ‘Dedication’ are few words that designers use shamelessly while ‘Copying’, ‘Infringing’ or ‘Plagiarising’ other’s design and fashion works. Earlier, clothing was necessity and hence seen in a utilitarian aspect. However, with changing times fashion has grown from utilitarian to artistic creations.With ever-increasing fashion industry, there are huge cries amongst the designer whose works are blatantly being ripped off.  Every Indian on the streets of Chandni Chowk, Delhi or Linking Road, Mumbai has been witness to knockouts and counterfeits of Sabyasachi’s lehengas and Manish Malhotra’s fashion week designer outfits. The reason being weak IP laws pertaining to fashion industry.

The lingering issue of Copyright protection in the Fashion industry has revived again due to internet sensation ‘Diet Sabya’. Diet Sabya is an anonymous Instagram page and desi-version of Diet Prada. The page calls out plagiarised fashion design works by comparing it on side-to-side basis. It has garnered attention of many in a short span of time with various celebrities appreciating the cause and various others fuming it.

                     Diet_sabya_blog1                            diet_sabya_blog2

The relation of fashion and copyright has always been complicated. IP protection via trademark is limited in its scope. It will cover only those patters or marks which helps the brand in its attaining its distinctiveness. Famous examples include Christian Louboutin and its trademarked red sole on footwear. However, Copyright is an IP protection which can save the drowning boat of designers. However, it comes with a set of its own problems.

The Scope of Copyright Protection

Getting a copyright registration is not necessary. A copyright exists as soon as the work is created. The first question then arises is whether a design is a work under Section 13 of the Copyright Act, 1957? Artistic work under Section 2(c) includes drawings, among other things. The sketches of the designs are drawings and can be protected under the Act. Also, copyright in artistic work includes conversion of 2D work into 3D work. So, when a drawing or sketch of a dress is converted into an actual dress, it would still enjoy the protection of Copyright.

The problem starts with Section 15 of the Copyright Act which provides that there cannot be any dual protection of design. It means that one cannot protect his design under Copyright Act as well as Design Act. If an Applicant wants Copyright protection for his design, he needs to submit an affidavit stating that the design is not enjoying protection under the Designs Act. The clause 2 of the said section also states that a copyright in any design which has not been registered under the Designs Act will cease as soon as the Article is reproduced more than 50 times by an industrial process.

Hence, the dilemma starts. Whether the work of fashion should be protected under Copyright Act or Designs Act? There is no definite answer to this. Some may prefer Copyright registration as it gives protection for more years than what Designs Act could give. On the other hand, some feel that there could be no purpose of registering a fashion work under the Copyright Act if it cannot be reproduced more than 50 times.

Another pitfall with copyright registration is that fashion is all about trends. It phases out every season. Getting a copyright registration takes its own time and there is a possibility that by the time the creator gets the registration, the fashion trend phases out.

In the case of Tahiliani Design Pvt. Ltd. v. 2008 PTC (38) 251, Delhi High Court deliberated the engagement of the regime of copyright and design law to decide an infringement suit. It was India’s first full-fledged battle on creative integrity. The Court held that intent of the Legislature is clear from the words of the Act. There is a deliberate exclusion of ‘artistic work’ from the definition of ‘design’ under the Designs Act, 2000. Further the Court held that “uniqueness not only in conceptualization but also in creation and presentation are sine qua non of haute couture.”

The other case which deliberated on the same issue was Microfibres v. Girdhar & Co.2009 (40) PTC 519 where the Division Bench of Delhi High Court held that the Legislature has always treated commerce and art as different things. The activity which is commercial in nature has to be granted lesser period of protection and hence Section 15(2) of the Copyright Act exists.

France currently is the only country having strong copyright laws for protecting fashion works. The statutory protection comes in the form of Article L. 112-2.73 in the Code de la Propriete Intellectuelle. The Code lists “the creations of the seasonal industries of dress and articles of” as a protected subject matter, and “uniform protection is given to original fashion designs automatically on the date of creation, regardless of registration, unlike different protection schemes given to registered and unregistered designs under the European Union regulations.”

There is another theory in IP protection and fashion works. Some feel that the weak IP protection to fashion works are boon. It encourages people to be more creative and think out of the box. If there were strong protection, no one would have thought of coming out with aluminium or steel plated boots. To think of, replicating or creating counterfeits of such steel-plated boots would be impractical as the essence lies in the material itself. Reproducing in a cheaper material would make the fashion useless and hence is secured without IP protection. But the question remains standstill. What about other designers whose designs could still be counterfeited with cheaper materials? A slight change in the material or patterns are still enabling infringers get away easily from the legal hands.

Recently, Designer Sabyasachi Mukherjee was awarded the National Intellectual Property Award 2018 in the field of designs and commercialisation for holding the copyright on more than 700 of his designs. His was the first design house to receive the award. In an interview he said, “It is expensive to register every single design, but it helps us to break the notion that the fashion industry is frivolous and doesn’t understand such complexities.”

On the issue of Copyright and fashion works, FDCI President Sunil Sethi stated that the Nandi bull by Designer Rohit Bal cannot be copyrighted. But the interpretation of embroidery makes the difference. By copyrighting such works, there will be better awareness and signature recall which will make imitation difficult in the fashion industry.

Author:  – Esha Himadri, Intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at swapnil@khuranaandkhurana.com.

References:

[1] https://timesofindia.indiatimes.com/city/delhi/rahul-mishra-accuses-indian-ethnic-wear-brand-and-a-french-label-of-plagiarism/articleshow/64137078.cms

[2]https://www.nytimes.com/2018/02/06/business/christian-louboutin-shoes-red-trademark.html

[4]Tahiliani Design Pvt. Ltd. v. Rajesh Masrani, 2008 PTC (38) 251 (Del.)

[5] Microfibres Inc. v. Girdhar & Co. &Anr., 2009 40 PTC 519 (Del)

[6] http://www.dailypioneer.com/vivacity/bal-protects-his-original-line.html

Leave a Reply

Archives

  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010