To explain: last week the news broke that Tamara Falcó had suddenly been left without a wedding dress two months before her wedding. The designer that was initially going to design the dress justified the sudden termination of contract arguing that the socialite had apparently wanted the dressmakers to copy the dress designs of other companies (Chanel and Karl Lagerfeld are mentioned). Out of respect for the profession and the rights of third parties, the designer decided to reject the commission. This is what can be deduced from the press release they sent to the media.
Tamara Falcó, on the other hand, claimed that she had never asked anyone to copy the design of a third party. According to her, these designs had simply served as inspiration when she asked the selected designers to make a dress “for her”. Due to disagreements between the two parties in this regard, the contractual relationship broke down.
In this article, we will not go into the legal details of the possible consequences for both parties of this termination of contract, nor the potentially high damages. Instead, we want to focus on freedom of imitation and plagiarism in fashion.
Fashion, and in particular haute couture, is a highly competitive, dynamic and specialised industry. Therefore, protecting the garments is essential for survival in the market. It is also one of the industries most affected by counterfeiting.
We must begin by defining the terms “plagiarism” and “copy”, and how they differ from “inspiration”. The Oxford English Dictionary defines the term “copy” as “a transcript or reproduction of an original” and “plagiarism” as “the action or practice of taking someone else’s work, idea, etc., and passing it off as one’s own”. Inspiration, on the other hand, is based on elements that are not appropriable, because they are the stimuli that animate the creative work in the arts or sciences.
Creating something utterly new, without any previous inspiration is practically impossible, there is nothing new under the sun after all. However, there is a fine line between inspiration and plagiarism, hence any situation must be examined on a case-by-case basis. Looking at the Spanish Unfair Competition Law, it might even seem that imitation is something positive. It’s article 11 states that “the imitation of business or professional services and initiatives of others is free, unless they are protected by an exclusive right recognised by law.” In the light of the above, basically, the limit to the freedom of imitation is the existence of industrial or intellectual property rights over works.
In the present case, if the socialite had actually asked to copy an entire dress from brands such as Chanel or Karl Lagerfeld, this would constitute two potential infringements, depending on whether those dresses were protected by (registered or unregistered) industrial design rights or by copyright.
Industrial design is understood as the ornamental nature or specific appearance of a product or part of it, which makes it visually different from another, without taking into account any of its technical or functional characteristics. For the protection to be effective, in general the holder must have these designs registered (protection for 5 years, can be extended to up to 25 years), but in certain countries or regions, such as the European Union, industrial designs are automatically protected for 3 years, even if they are not registered.
This is of great relevance in fashion, where the dynamism of collections is very high. In this industry, one might consider not incurring in the additional cost for registration, if the design may foreseeably have a short life.
Copyright, however, serves to protect creations that are original, not utilitarian. In fashion in general, copyright provides limited protection. But for haute couture and renowned firms, its less about fashion and more about works of art, and these are fully protected by copyright. Copyright includes the moral rights of the creator, which are inalienable and not subject to any time limitation, on the one hand, and the rights of exploitation or commercialisation of the work, which are assignable or licensable and last for 70 years after the death of the creator, on the other.
In the case of Tamara Falcó, if, as she alleges, what she had asked for was simply to have a dress made for her, combining a number of elements from other dresses (even if they were protected in one of the above ways), resulting in a new creation, where the previous dresses and their commercial origin were not recognisable to the public, these actions would not constitute any infringement.
In any event, however we believe the question of possible plagiarism will be subordinate to the question of what the dress of the newly selected designer will look like, and the legal matter of possible consequences of the early termination of the contract and the compensation to be paid by the parties.