Copyright Protection & Safeguards for Fashion Designers in India | IP Attorney in Delhi NCR | IP Lawyer in Delhi NCR |

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A design which is the heart and soul of fashion takes significant time and money to be created but it is really easy to copy it and sell it to make illegal gains. This is the reason why it is of great importance to protect such designs under the ambit of Intellectual Property Rights (IPR) in order to prevent the person copying to free ride on the intellect of someone else and to encourage designers to invest further in new creations and art. Therefore, it becomes necessary for the fashion designers to protect their original artistic work under the ambit of Copyright Act, 1957.

The Copyright law confers an exclusive right on the creator of an original artistic, literary, musical work. Therefore, a fashion designer can seek the protection of his/her design under Copyright provided they qualify as an original artistic work and has some expression of an idea in a physibucal form. This can be very beneficial for the fashion designer as it confers a protection for 60 years beyond the life of the fashion designer.

In the fashion industry, copyright can be helpful in protecting graphical work like painting and drawing, however, in case a design on paper is applied on a dress, the designer would have to rely on the Designs Act, 2000 to protect his/her rights.

The Copyright and the Designs law overlap with each other thus, creating an issues whether a design has to be registered under Copyright Act or the Design Act. Section 15 of the Copyright Act, 1957 deals with the copyright in designs and lays down three conditions:
1) When a design is capable of being registered under the Designs Act, 2000 and the same is registered under the provisions of the Act, in such case the copyright in the registered design will subsist under Designs Act of 2000 for a maximum period of 15 years.
2) When a design is capable of being registered under the Designs Act, 2000 but it is not registered under the provisions of the act, in such case the copyright in the design will subsist until 50th reproduction of the design on an article through industrial reproduction.
3) When a design in an original artistic work and does not qualify as a design to be registered under the Designs Act of 2000, such design can be protected under the Copyright Act, 1957 and the protection is conferred as soon as the design comes into existence.

These conditions have led to a lot confusion amongst the fashion designers as to how to go about protecting their designs. The Hon’ble Delhi High Court tried to bring some clarity on this issue in the case of Microfibres v Girdhar 2006 (32) PTC 157 Del, wherein the issue before the Court was whether fashion designs qualify as the artistic works which are excluded from the purview of registrations under Designs Act, 2000. The Court categorically laid down that the painting in question qualifies as an original artistic work registrable under Copyright Act. However, when it is modified in order to make it applicable to an article and is put through an industrial process, copyright in such design remains protected only till the production of 50 units of the article. As soon as the 51st article is industrially produced, the copyright ceases to exist and if not registered under the Designs Act, become open for all to use. However, the Copyright in the original artistic work of painting remains to be protected under Copyright for the span for 60 years after the lifetime of the artist. Only the design derived from the painting and applied through the industrial process faces the hindrance by virtue of section 15 of the Copyright Act.

In a similar case before a Division Bench of the Hon’ble Delhi High Court in Rajesh Masrani v Tahliani Design, FAO (OS) No.393 of 2008 wherein the plaintiff claimed infringement in copyright of the drawings made in the course of developing garment. The main contention of the Plaintiff was that only 20 articles where produced with the design through industrial process thus, section 15 of the Copyright Act of 1957 was not applicable and Copyright existed. The same was countered by the defendant on the ground that the drawing was created with an intention to apply the same to garment and use it for commercial use, therefore, even if the benchmark of 50 article is not reached still copyright protection shall not be conferred. The Court while denying the contention of the defendant to rely on the intention upheld the copyright of the plaintiff in the drawings.

Furthermore, in the case of Ritika Private Limited v. Biba Apparels Private Limited, CS(OS) No.182 of 2011 wherein the again a similar case of brought before the Hon’ble Delhi High Court, the Court laid down that in cases where the copyright work is lifted as it is and applied to an article through industrial process, then it leads to copyright infringement. However, in cases like in the present case where the defendant has not affixed the print as it is from the copyrighted work to the article, there is no violation of copyright of the plaintiff.

Therefore, the above mentioned judgements can be collectively summarized in the following terms:
1) When an original artistic work is used to derive a design which is applied to an article through industrial process and more than 50 articles are produced then the copyright exists in the original artistic work however, does not exist in the design unless registered under the Designs Act of 2000.
2) When an original artistic work is applied to an article through an industrial process, without any modification and more than 50 articles are produced then Copyright in both the original artistic work and design extinguishes.

Hence, for any infringement case has to look at the time when the infringement was committed and see whether the Copyright existed with the artist or whether it was extinguished by virtue of section 15 of the Copyright Act, 1957.

Therefore, in light of the huge investment that is made by a fashion designer in creating a line of product, it becomes significant to protect the same from any kind of illegal and unauthorized usage including piracy while ensuring the registration of the works of the fashion designers to be registered under the requisite Intellectual Properties (IP) laws. Trademark gives a perpetual protection to the Fashion Label and hence, plays a key role in protecting the product line. If the designer has created a limited edition garment, protection is advised to be retained under Copyright Act of 1957 by not producing more than 49 articles, which would confer the protection for a longer period. On the other hand, if a design as to be used for mass production, the designer should make sure to get it registered under the Designs Act, 2000 prior to releasing it to the public. The whole fashion industry is driven by creativity and intellectual assets. Hence, management of Intellectual Properties (IP) assets becomes a key to ensure success of the business through improved sales, licensing, increase margins of profit and reduces the chances of violating Intellectual Properties Rights (IPR) of any other person.
Authored By: Adv. Anant Sharma & Ananya Jain