Copyright Law in the Fashion Industry

The fashion business in India extends back thousands of years. Since antiquity,
India has been the cradle of fashion apparel knowledge. Men’s and women’s dress
choices were a prominent indicator of fashion during the Indus Valley
Civilization (3000-1500 AD). Men in loincloths and women with only their waists
are portrayed in the sculptures that are presently on exhibit across the
country.

According to Vedic literature, complex methods of producing garments were in use
throughout this time period. The Greek historian Herodotus wrote about India’s
high-quality cotton clothes in the fifth century BC. The Rig Veda also recounts
the clothing that was dyed, embroidered, and manufactured throughout the Vedic
era approximately the eleventh century B.C. During the British colonial era in
India, British industrial cloth was pushed. Khadi, a handwoven fabric, was sold
in an effort to reduce Indians’ dependency on British goods.(i)

An Overview Of The Fashion Industry In India

India’s fashion business started to acquire importance in 1980, but by the end
of the 1990s, it had expanded tremendously. From 1980 onward, Indian women’s
involvement in the fashion business has increased. This sector encouraged the
nation’s women to be empowered. The manufacture of Western-style textiles and
fashion products gained steam in the same year as Indian consumers’ needs for
this kind of product expanded as a result of altering fashion trends.

A number of significant elements contributed to the amazing rise of the Indian
fashion sector, including the availability of affordable bespoke tailors,
handwoven textiles and craftspeople, and western-inspired garment trends.
Conversely, the fashion designers succeeded in gaining corporate finance for
their boutiques. The private sector contributed positively to the nation’s
industry’s continuous advancement. Before 2005, the fashion sector began to
expand its activities outside of its local market after settling in. During this
time, fashion designers began to establish their enterprises in tiny towns. In a
single year, the industry made earnings close to two billion Indian rupees. The
policy of the Indian government promoted this enterprise.(ii)

It led to an increase in employment and income prospects in semi-urban and rural
areas. The cotton and clothing exports profited from the scheme as well. A
number of Five-Year Plans stressed rural industrialization as a means of
contributing to the expansion of the nation’s fashion industry. Currently, the
majority of the Indian fashion business is made of an unorganized sector.
Despite the diversity of cultures around the world and the ever-altering
preferences of consumers, it may still compete in the global fashion industry.

Research by McKinsey(iii) predicts that this industry employs roughly 45 million
people directly and 60 million indirectly. It is projected that 41% of
procurement officers globally will raise their sourcing proportion from India.
The reason for this is that India’s average cost is significantly less than
China’s. Furthermore, a diversity of raw materials such as cotton, wool, and
silk are widely available.

The Indian government has started a number of measures to promote textile and
garment products globally. The Indian government established various programs to
promote textile and garment products internationally. The Integrated Textile
Parks Scheme was launched during the preceding Five-Year Plans. The program
intends to deliver high-quality infrastructure to the textile sector. Currently,
public sector initiatives are also helping to the growth of the fashion
business.

In 1998, the Ministry of Textiles of the Indian government founded the National
Institute of Fashion Technology with the purpose of assisting the country’s
specialized garment sector. Because of the requirement for on-the-job training
and the constantly increasing garment sector, the fashion industry is in severe
need of qualified, recently trained staff.

To assist with these issues, NIFT
delivers programs at the certificate, diploma, and degree levels. Many attempts
are being made to update academics’ understanding of the industry in real-life
situations in order to expose them to the newest ways being implemented in the
sector and enable them to teach them in the classroom. To aid in the growth of
the country’s fashion industry, the Indian government also began a number of
research and development (R&D) projects in conjunction with industry.(iv)

The future of the Indian textile business is bright, as there will be a growing
need for exports on the worldwide market, as well as higher levels of local
consumption. Many multinational companies have already joined the Indian market,
establishing themselves in remote villages and constructing enormous shopping
malls in the country’s major cities.

The Indian government is working hard to ensure the future development of the
country’s fashion industry. According to various estimates, there were
approximately 8 million job openings in 2014-15, compared to 45 million in
2018-19. Fashion items from major brands such as Zara, Calvin Klein, Zodiac, and
others appeal to Indian shoppers. Raymond, Tata Group, Reliance Retail, and
Future Group are among the Indian companies launching their own fashion product
lines.

Fashion In Terms Of Intellectual Property

Introduction
Fashion as an art form is a reflection of life. It is a language comprising of
signs, symbols, and iconography that gives information about persons and groups.
It is a personality extension and a means of self-expression. Fashion can vary
considerably within a society depending on characteristics such as age, social
class, generation, occupation, geography, and period. It is continually
changing, maybe quicker than the majority of other human activities.

In general, fashion refers to a form of apparel that is popular among a given
set of people or at a specific time. Fashion design is the application of design
and aesthetic beauty to clothes. The purpose of this artistic endeavor is the
creation of one-of-a-kind apparel and other lifestyle accessories. Fashion
design, largely considered as the “principle creative element” of the business,
has changed over time and space, and is impacted by social and cultural
perspectives. Modern fashion design is classified into three categories: mass
market, ready-to-wear, and haute couture.(v)

Haute Couture was the foundation for the development and production of fashion
clothing until 1950. A couture item was manufactured to order for a single
customer out of expensive, premium cloth. It was sewn with painstaking attention
to detail and finished with time-consuming procedures.

Clothing in the ready-to-wear line is created in standard sizes rather than to
order, making it more suitable for big production runs. Fashion houses
frequently display them during fashion week. They are grouped into two
categories: designer and confection collections. Designer collections feature
one-of-a-kind designs as well as better quality and polish. Rather of being for
sale, they are created to make a statement and frequently represent a specific
concept. Catwalks across the world showcase both haute couture and ready-to-wear
styles.

Mass market sales today play a major role in the fashion business. To meet the
needs of a broad spectrum of customers, the mass market manufactures
ready-to-wear clothing in standard sizes and enormous quantities. The result of
creative use of low-cost materials is affordable fashion.(1)

Major fashion firms set trends that are typically followed by mass market
designers. They often wait until the end of a season to see if a trend will
catch on before releasing their own copies of the original design.(2) They use
less expensive textiles and simpler, machine-assisted production techniques to
save money and time. As a result, the final product can be offered for
significantly less money.

Origin of ‘Stealing Fashion’

Silk weavers in Lyon, France, began to pursue pattern preservation in the early
eighteenth century. In the 1850s, French designer Charles Worth established the
tradition of exhibiting new clothing designs for each season, which continues to
this day. Unfortunately, this strategy gave rise to a subculture of imitators,
who produced the Parisian originals at a far lower cost.(3)

The French, who are always at the forefront of fashion design and design
protection, used two strategies to combat piracy. First, by attempting to
protect their unique fashion concepts through intellectual property rules; and
second, by licensing their original designs to other manufacturers, which those
manufacturers then reproduced word for word.

The wealthy, who could afford haute couture, flocked to Paris to be among the
first to buy the newest creations, while the middle class purchased legally
licensed replicas from local department stores. According to Susan Scafidi,(vi)
French anti-piracy rules contributed considerably to the expansion of the Paris
fashion industry and have continued to do so even though they did not completely
eradicate it.



Knockoffs vs. Counterfeiting

A knockoff is a close duplicate of the original fashion design that mimics some
of its qualities but is offered under a different label from the original
design. It is not advertised to appear like the original as a result. Knockoffs
bear the name of another designer but are manufactured to imitate the original
design almost identically.(vii)

Example, in New Delhi, there are specific markets in Chandni Chowk and Chor
Bazaar which sell knockoff Manish Malhotra designer lehengas and gowns for a
considerably lower amount. It is fascinating that it is even marketed as such,
and has gained popularity for having knockoff items of various designer houses.

In contrast to a knockoff, a counterfeit is an exact duplicate of the original
fashion design, including the brand mark or label associated with that design.
The purpose here is to fool buyers regarding the genuine origins and substance
of the clothes. Fake clothing is sold as genuine-looking apparel.(viii) Not all
counterfeiters, however, will accept this combination because some only copy the
labels of high-end clothes manufacturers. These cases solely indicate misuse of
the fashion brand’s trademark or logo.

An example of this can be when apparels that belong to ‘Adidas’ are sold as
‘Adibas’ or ‘Abidas’, since they ae not manufactured by the brand itself. This
is very common when one shops in shops from Lajpat Nagar and Sarojini Nagar in
Delhi.

Copyright Law in India

Sections 13, 14, 15, and 22 of the Indian Copyright Law are some of the key
provisions that may address the protection of Indian fashion designs and
garments. Therefore, it would seem that fashion and clothes design fit under the
heading of “artistic work.” The work in which the copyright exists is covered by
Section 13 of The Copyright Act, 1957. Thus, clothing and fashion designs may be
deemed artistic works under Section 2(c) of the Copyright Act of 1957 and be
eligible for protection under Section 13(1). This means that the author will be
the only one with the authority to do the following for an artistic work covered
by section 14:

1. Reproduce the work in any tangible form, including:

   1. storing it in any media, electronic or otherwise;
   2. depicting a three-dimensional work in two dimensions;
   3. depicting a two-dimensional work in three dimensions.

2. making the work available to the public;
3. permitting the public to obtain copies of the work;
4. combining the work into motion pictures;
5. making any form of adaptation.

Hon’ble Judge Jaspal Singh issued an interim order in Amarnath Sehgal v. Union
of India and Ors.(ix), a case in which the plaintiff’s moral rights were
violated, preventing further loss or damage to his mural from Vigyan Bhawan, and
forbidding him from taking any actions that would compromise his honor or
reputation as the work’s creator.

Even though it was too late to save the mural by the time Mr. Sehgal’s lawsuit
reached the court in May 1992, he was issued an order preventing the defendants
from causing further damage to it. By chance, the sitting Judge had a true flair
for poetic justice and was an art fan himself.(x)

After reviewing Section 15 of the latter law, it appears that the Designs Act
and the Copyright Act share concerns about the protection of industrial designs.
Section 15 of the Copyright Act of 1957, when paired with the Design Act of
2000, provides the following:

1. The Designs Act alone protects industrial designs that are registered in accordance with the 2000 Designs Act provisions;
2. The Designs Act may protect industrial designs that are eligible for registration under the Act but have not yet been registered;
3. The Copyright Act, 1957 may protect industrial designs that are not covered by the Designs Act protection.
4. Before digging more into the provisions of Section 15 of the Copyright Act of 1957, consider how the Designs Act of 2000 may help to protect fashion and garment designs in India.
5. The Designs Act of 2000 strives to protect unique and creative designs by focusing primarily on appearance and style.

The facts of copyright registration was studied since protection under copyright
rules looks like a fair choice. However, the information on copyrights that have
been registered as of 2016 is confined to month-by-month registration details
and is not available on the Registrar of Copyrights website.

Furthermore, a variety of categories, including literary works, computer
software, and creative works, have been commonly utilized to identify registered
copyrights. Since there are no longer any works inside the creative work
category, it is certainly our job to distinguish between the many works that
fall under it.

It can be relatively tough to decide whether creative works belong in the
category of fashion design, garment design, or any other field that might apply
fashion design. Unlike industrial designs, which can be divided into multiple
subcategories, artistic compositions are not subject to the same copyright
rules.

The data has been searched for terms connected to fashion designs in order to
discover the various works that are registered under the copyrights in the
artistic work category. Terms used include garments, clothes, apparel designs,
sarees, dresses, dress fabrics, textile materials, jewelry, and bags and
handbags as fashion accessories. Prints relating to garments and apparel goods
are also used.(xi)

Ritika Private Limited V. Biba Apparels Private Limited: A Case Commentary(xii)

The plaintiff brought a complaint against the defendant for replicating,
printing, publishing, selling, or supplying prints or clothing that were a
reproduction of their designs. The plaintiff claimed to be the first owner of
the copyright in the artistic works relating to these clothes and claimed trade
secret violation by its ex-employees.

The court relied on the Microfibres Inc. Vs. Girdhar & Co. & Anr.(xiii), which
stated that a design used for creating dresses cannot be protected under the
Indian Copyright Act if it exceeds the limit of 50 times.

The court also noted that interpreting the Indian Copyright Act without
registering the design under the Designs Act would be redundant, as every design
has an intermediate product. The court found that if a design is not registered
under the Designs Act, it loses copyright protection under the Indian Copyright
Act.

The court found that the defendant was not creating dresses or articles by
industrial means, but affixing a print from the plaintiff’s copyrighted work as
a print on a dress created by the defendant. The court questioned the fairness
and justiciability of the extent of copyright protection extended under the
Designs Act, 2000 through the limitation under Sec. 15(2).

However, the defendant maintained that the plaintiff’s case came under Section
15(2) of the Copyright Act, 1957, as the copyright in the plaintiff’s design
ceased to exist as it had been reproduced more than 50 times via an industrial
method.

The Delhi High Court found that the litigation was precluded by Section 15(2) of
the Copyright Act, 1957, as the plaintiff’s copyright in the works had ceased to
exist. The court decided that Ritu Kumar was not entitled to design protection
or enforce its copyright in the original drawing of the design. The Designs Act,
2000 tries to maintain exclusivity while not over-protecting designs, yet the
definition of a design excludes any artistic work.(xiv)

Conclusion

The Indian fashion industry is a dynamic and diverse industry that is dependent
on the innovation of its designers. This industry, however, presents issues in
defending its intellectual property rights from infringement. The Copyrights Act
of 1957 and the Design Act of 2000 are key components for maintaining
intellectual property protection in the fashion business.

By virtue of originality and artistic effort, the Copyright Act protects
designers and their work. Section 2(2) of the Copyright Act broadens the scope
of creative work to include creative/artistic work based on visual enchantment.
When a design enters the picture and is registered under the Design Act, the
role of the Copyright Act is over.

The Design Act’s role begins with an authentic/original design, which
encompasses features, colors, patterns, shapes, line compositions, and
ornamentation. Infringements against these registered designs can be punished
for ten years, with a possible extension to fifteen years in specified
circumstances. Following registration, the proprietor has entire autonomy over
the developed thing in order to prevent counterfeits and knockoffs. Section 22
of the Design Act levies retribution for design piracy in the form of damages.

Understanding how the Copyright Act and the Designs Act interact is crucial to
understanding how they complement each other. The Copyright Act seeks to secure
the creator’s economic rights to produce, transmit, and sell their creations,
whereas the Design Act seeks to defend the creator’s business interests by
punishing infringements.

From the standpoint of the consumer, the Copyright Act and the Designs Act work
in unison to defend the consumer’s interests. On the one hand, copyright
restrictions allow consumers to buy authentic, high-quality ideas, while the
Design Act protects consumers from acquiring counterfeited goods.

Finally, the Copyrights Act of 1957 and the Designs Act of 2000 act in unison to
address infringements in the Indian fashion business. The Copyright Act and
Designs Act, by addressing the special difficulties faced by the Indian fashion
industry, offer a complete framework for protecting the intellectual property
rights of inventors and designers in the Indian fashion industry.

End-Notes:

1. Tiwari, S. (2016). Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View. SSRN Electronic Journal. URL: https://doi.org/10.2139/ssrn.2805346
2. Singh, N. (2018, June 6). Fashion History: Mass Market. – Namanpal Singh – Medium. URL: https://medium.com/@namanpalsingh/fashion-history-mass-market-4698bea668b5
3. Ellis. (2010). Copyrighting Couture: An Examination of Fashion Design Protection and Why the DPPA and IDPPPA are a Step Towards the Solution to Counterfeit Chic. Tennessee Law Review, 78, 163. URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1735745
4. I., & Bhattacharjee, S. (2023, November 16). Evolution of Fashion Industry in India. IIAD. URL: https://www.iiad.edu.in/the-circle/evolution-fashion-industry-india/
5. Tiwari, S. (2016). Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View. SSRN Electronic Journal. URL: https://doi.org/10.2139/ssrn.2805346
6. Amed, I., & Berg, A. (2021, December 10). The State of Fashion 2019: An ‘Urgent Awakening’ for the Industry. The Business of Fashion. URL: https://www.businessoffashion.com/reports/luxury/the-state-of-fashion-2019/
7. Growth Of Indian Fashion Industry. (2010). EGyanKosh, 54. URL: https://egyankosh.ac.in/bitstream/123456789/61760/3/Unit-4.pdf
8. Tiwari, S. (2016). Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View. SSRN Electronic Journal. URL: https://doi.org/10.2139/ssrn.2805346
9. Scafidi. (2008). Intellectual Property and Fashion Design. Intellectual Property and Information Wealth, 1(115). URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1309735
10. Christian, E. (2023, June 4). Knock Off Clothing Meaning. The Socialite’s Closet. URL: https://the-socialites-closet.com/knock-off-clothing/
11. Borukhovich, B. (2022, August 3). Fashion Design: The Work Of Art That Is Still Unrecognized In The United States. Wake Forest Journal of Business and Intellectual Property Law. URL: https://jbipl.pubpub.org/pub/8b6z98s8/release/2
12. Amarnath Sehgal v. Union of India and Ors., 2005 (30) PTC 253 (Del)
13. Copyright in the Courts: How Moral Rights Won the Battle of the Mural. URL: https://www.wipo.int/wipo_magazine/en/2007/02/article_0001.html
14. Swarup, & Rastogi. (2021). Fashion Design and Intellectual Property Rights: An Indian Perspective. Journal of Intellectual Property Rights, 26(3). URL: https://doi.org/10.56042/jipr.v26i3.65134
15. Ritika Private Limited v. Biba Apparels Private Limited, CS(OS) No.182/2011
16. Microfibres Inc. Vs. Girdhar & Co. & Anr., 2009 (40) PTC 519 (Del)
17. Lath, A. (2016, June 2). Ritu Kumar v. Biba : Designs free at 50? Spicyip. URL: https://spicyip.com/2016/06/ritu-kumar-v-biba-designs-free-at-50.html

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