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“What is couture if not absolutely bespoke, both in make as well as concept?” – Varun Bahl Photo Credit: ELLE India November 2015

COPYRIGHT IN EMBELLISHMENTS, ORNAMENTATION, AND TEXTILES

I was blown away when I visited Varun Bahl‘s studio in Delhi, India in 2011.  It was mesmerizing to see up close the details of the hand embroidery, beadwork, and embellishments that make up so many of his designs.  Varun is a true couturier. Nothing is mass-produced – it wouldn’t be possible with the level of intricacy in the textiles. And the good thing is,  textiles and patterns are among those fashion design elements – some of the few – that are almost universally protected by intellectual property laws.

India is one of the world’s leading producers of textiles-the sixth largest global exporter of textiles in the world.  India’s Copyright Act (1957) and the Design Act (2000) collectively give the guidelines for copyright protection for designs and textiles, as well as geographical indication protection for some textiles. Like many other jurisdictions, registration of a textile design in India is strongly encouraged to secure protection and reduce potential liability from or opposition by another party.

And although many countries offer copyright protection for fashion garments in their entirety, the United States does not. Various legislators and members of the fashion industry have worked tirelessly to gain support for the Innovative Design Protection Act (IDPA), a proposed amendment to the Copyright Act that would give US copyright protection for full fashion designs, expanding on the current US protection that only extends to certain elements of the designs. By doing so, the US protection of fashion designs would reach a level of protection comparable to many European and Asian countries, India included.

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Photo Credit: Harper’s Bazaar Bride India

Varun can rest easy in the knowledge that many of the unique and amazing features of his garments rightfully enjoy strong protection globally.  Fashion designs are not protected equally around the world but textiles are given almost universal proteciton.

If you’d like to know more about how to protect and/or register your copyright for designs or textiles, contact me at layne@laynerandolph.com.

Thanks to Varun Bahl for his cooperation with this post. If you’d like to learn more about Varun Bahl and see more of his designs, you can find him on Facebook or at his website VARUN BAHL.  

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Fashion illustration by Juan J. Rivera

What a great event hosted by BLACA and Berwin Leighton Paisner LLP in London!! I especially loved meeting all of the Queen Mary IP Masters students who “crashed” the event (I’m glad you did) and the London-based IP professionals who were so knowledgable and collaborative.  Thank you for hosting me and making me feel so welcome. Check out the BLACA website  for more information about the organization and check out my Facebook Page for upcoming photos.  Special thanks to Brigitte Lindner, Darrell Panethiere and Simon Clark!

 

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Speaking to students in the Queen Mary IP Masters program in London.

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Photo Credit: Isabella Bejarano

Orly Ruaimi’s jewelry designs have graced the arms, wrists, and necks of many celebrities, including Lady Gaga and Will.I.Am.  Her designs embody the phrase “fashion as art”. This view traces its origins back to the French Copyright Act of 1793, which classified fashion as an applied art.

Clothing design is not considered art under US law because the US considers clothing functional.  But there are fashion items that receive protection, such as jewelry and certain embellishments. The US Copyright Office provides copyright registration for original jewelry design as a “work of the visual arts.” Jewelry design includes 3-dimensional designs applied to rings, pendants, earrings, necklaces, etc. Copyright protection is automatic in the US; that is, copyright exists as soon as the design is fixed in tangible form in some way – even on paper.

Although copyright protection is automatic, there are advantages to registering your designs with the Copyright Office.  First, it provides prima facie evidence of a design’s originality.  Second, it provides proof of ownership.  And third, it gives the owner the right to bring suit in federal court to protect the copyright.  (See www.copyright.gov for more information).

Copyright enforcement is not as simple. The standard to prove infringement is to show that the potentially infringing object has “substantial similarity” to your design.  This is something that can be complicated and expensive to prove since most jewelry designs incorporate shapes and objects that are already in the public domain (leaves, circles, etc.).  It is very possible that designers could create similar looks independently. Therefore, copyright protection is hard to enforce even with a registration, if your pieces are not objectively unique.  Conversely, the more unique/original and the more art-like your jewelry design, the easier it is to protect your rights against potential infringers.

Orly Ruaimi’s designs are so unique, knock-offs are likely less common. Still, as the court in Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co. famously stated, “There is nothing anyone can design or manufacture which someone else cannot make worse and sell for less.”

And that’s where intellectual property rights come in, to help protect the rights of the creators of these beautiful original works.

We thank Ms. Ruaimi for her participation in this post and wish her much continued success. For more information, please visit www.orlyruaimi.com