Have you ever heard about Fast Fashion Industry? Or have you owned one of the products from well-known fast fashion brands?
Fast fashion is a business model from the fashion industry that is carried out in the production of clothing models by imitating the design of high-end branded fashion companies, done en masse in a short period, and sold at lower prices.
When you hear the word “copying” and associate it with the concept of intellectual property, you may immediately think about how intellectual property law regulates this business model.
The word “copying” is also very closely related to the concept of infringement of copyright law, in which many cases become copyright law problems because other parties copy or plagiarize an original work.
So, how can this kind of business model still work? Can it be detrimental to high-end brand owners as copyright holders of these designs? Let’s look at the full review in the following article.
Latest Case
Recently, there has been a copyright dispute between two well-known fast fashion brands, Hennes & Mauritz (H&M) and Shein. H&M filed the lawsuit against Shein in a court located in Hong Kong.
The copyright infringement case was first heard in a Hong Kong court last September, and the judge allowed the case to proceed, according to separate documents released in May. The final hearing occurred at the Hong Kong High Court on June 21st, followed by another on July 31st.
In this dispute, H&M provided evidence in court documents containing comparative photographs of the similarity between the sweater designs and Swimwear from H&M and Shein. However, the authors did not find a source that clearly shows a comparison of photos between the designs of the two brands.
This case is an interesting case to discuss because both business models use the fast fashion model for their clothing designs, which both imitate high-end brands’ designs. So that will raise further questions: Does the fast fashion industry hold the legality to operate, and will it get copyright protection? Even though the process of imitating the designs of other parties is also carried out by these two brands as their business model?
The History of Fast Fashion
In the fashion world, it is commonplace to take inspiration from clothing models issued by well-known brands because of the need to innovate. This business concept had even existed since the 1980s when the first industrial revolution began with the appearance of sewing machines. With this sewing machine, the ability to produce clothes quickly generates high profits.
Because it has been around for a long time and is generally accepted by the community, this business continues to grow and can survive. The area of the legality of this business concept is still gray. The legal dispute also depends heavily on the complaint offense filed by the aggrieved party and is casuistic, so the articles imposed cannot be generalized.
Factors Affecting Its Legality
One of the factors that affect the legality of fast fashion is the law regarding copyright itself. Under copyright law, clothing is not specifically protected as an object of legal protection. Copyright also does not cover the item’s function, such as the shape of a t-shirt – it does not qualify for protection because it does not provide a differentiating value and the authenticity of a product. However, some parts of the clothing, such as unique design elements, will be protected by copyright. For example, specific patterns or color schemes that make an item different may qualify for legal protection, but not in all cases. For example, while many people associate the iconic red-soled shoe with designer Christian Louboutin, a French court ruled in 2012 that imitations produced by fast fashion chain Zara did not infringe on the designer’s intellectual property rights.
Perspective of Copyright Law in Indonesia
To be protected by the copyright legal regime, a fashion design must have the following elements:
- A result of creative ideas in the form of art. Based on Article 1, paragraph (3) of the Copyright Law, a work is the creator’s work that shows its authenticity in science, art, or literature. Fashion design is more appropriate to be categorized as an art.
- Not produced in mass quantities. The work of a fashion designer can only be protected by copyright if the invention is not mass-produced, but only one for each plan, so the work is limited and exclusive.
Article 40 paragraph (1) letter f of Law no. 28 of 2014 concerning Copyright states that “works of art in all forms” are creations that can be protected and accommodate fashion protection in the form of works of art.
Unfortunately, designs already in clothes do not get copyright protection. However, copyright protection for fashion products can cover the protection of images, motifs, or patterns contained in the design of these fashion products.
In other words, copyright only protects ‘ornamental’ designs applied to a fashion or clothing product. Therefore, copyright does not protect fashion products in the form of functional goods and are mass-produced for industrial purposes. It means that only the designs and images on the clothes are protected, but not the actual form of the fashion product, for example the product’s cut, shape, and dimensions.
IP Legal Protection through the Industrial Design Regime
Apart from being protected by a copyright law regime, fashion designs can also be protected by Industrial Design Regime. Several different elements make a fashion design fall under the protection of Industrial Design law and not copyright include:
- A new design artwork. Based on Article 2 paragraph (1) of Law no. 31 of 2000, the right to an industrial design can only be given to a new industrial design, meaning it is considered new if there was no design disclosure beforehand. Meanwhile, an industrial design is not deemed to have been announced if, within a maximum period of 6 months before the date of receipt of said industrial design, it has been shown in a national or international exhibition in Indonesia or abroad, which is official or recognized as official or has been used in Indonesia by Designers in the context of experiments with educational, research, or development purposes.
- Mass produced. A design that is registered with industrial design must be a mass-produced design, such as clothing designs issued by retailers or convections.
Why is this case classified as a Copyright infringement?
Let’s look at the case in which both of them do not have the previously mentioned elements to be protected as industrial designs. The designs are only produced in limited quantities, quickly changes, and take ideas from the work of other designers through fashion shows. H&M and Shein took this infringement case to the realm of copyright law because they do not disputed the type of shape of their designs (e.g., swimsuits and sweaters) but the images, motifs, and patterns contained in the designs of their clothing products.
Advice From a Legal Perspective
In the absence of standard rules that are applied in the laws regarding fast fashion, you need to consult a trusted legal adviser so that legal misunderstandings are avoided when you are making decisions. With our experiences at Am Badar & Am Badar, which has been established for more than five decades, our team has expertise in handling legal issues regarding intellectual property. If you need our legal assistance, don’t hesitate to contact ambadar@ambadar.co.id
References:
eprints.undip.ac.id
