The Authors' Take - Private Copying of Fashion Designs – Should Fashion Houses Intervene or See it as an Opportunity?

Private Copying of Fashion Designs – 

Should Fashion Houses Intervene or See it as an Opportunity?

by Heidi Härkönen

Knock-offs are not always produced by cheap fast-fashion companies or shady counterfeit businesses. Anyone who follows sewing-themed social media knows how common it is for amateur seamstresses to create skilfully-made knocks-offs of well-known fashion designs. Especially children’s fashion seems to be the target of copycats, and the most-copied brands mainly produce clothes for children. The reasons for private copying are not only financial but also related to needs of altering or personalizing the product somehow.

Private copying of fashion designs has existed throughout the modern fashion industry. However, in the 21^st century, images of these copies can easily spread to wide populations and gain fame, which has potential effects on the brand image of the copied fashion house. Thus, should fashion houses intervene and can they even intervene in this kind of activity?

When it comes to copyright protection, amateur seamstresses will likely be able to rely on the InfoSoc Directive’s private copying exception in most Member States. Design right and trademark protection will often be equally ineffective, since most home-sewers will not make copies for commercial purposes or use a trademarked sign in the course of trade.

Legally, the problem of home-sewn copies is rather simple. Fashion houses as intellectual property right holders have very little that they can do to prevent people from home-sewing copies of their fashion designs, since without any commercial purpose it will often fall outside of the scope of exclusive rights.

However, instead of ignoring the phenomenon of home-sewn copies, fashion houses could utilise the copying habits of sewing amateurs and make profit out of them. Providing sewing patterns or “DIY-packages” of bestseller products for private copying could benefit both the brand and the person whose intention it is to make a private copy of the product in question. This way the brands could engage new customer groups. Especially brands that manufacture children’s fashion could see this as an opportunity, since children’s fashion seems to be the most copied segment by sewing hobbyists.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). An extended version of the present contribution will be included in our Fashion Law Special Issue, due for release as Issue 11/2018, and published with the following title: 'THE NEW ERA OF HOME-MADE FAKE FASHION - The phenomenon of home-sewn copies and the possibilities for fashion houses to take advantage of it.'] 

The Authors' Take - To be or not to be … photoshopped

To be or not to be … photoshopped

by Yann Basire and Caroline Le Goffic

Photoshopping has become commonplace in fashion advertising. In most cases, models’ bodies are slimmed by using image-editing software. Such practices promoting unrealistic representations of women’s bodies are known to play a role in the development of eating disorders.

In the Law 2016-41 on the modernization of the French health system of 26 January 2016, the French legislator tackled this public health issue by including a provision (codified as Article L. 2133-2 of the Public Health Code) whereby fashion photos must bear a notification if they have been digitally altered to make a model's silhouette "narrower or wider”. The goal is to raise consumers’ awareness about the dangers of extreme thinness.

This provision was subject to its implementation by a Government decree, which came on 4 May 2017. Decree 2017-738 of 4 May 2017 pertaining to photographs used for commercial purposes of models whose physical appearance has been modified (codified in articles R. 2133-4, -5 and -6 of the Public Health Code) specifies in fact the scope of the rule.

The system came into force on 1 October 2017.

Pursuant to Article L. 2133-2 of the Public Health Code, “photographs used for commercial purposes of models, as defined by Article L. 7123-2 of the Employment Law Code, whose physical appearance has been modified through the use of image processing software to slim down or flesh out the model's silhouette must bear the notice: 'Retouched Photograph.'" The Employment Law Code defines models broadly as all persons who, even occasionally, either present a product or a service to the public while reproducing their image on any visual or audiovisual support, or pose as a model, whether or not their image is later used.

The Decree specifies when photographs of models may be deemed to be used “for commercial purposes”. Article R.  2133-4 of the Public Health Code provides that the rule applies to “photographs used in advertising messages”, which means that photographs used in articles are excluded from the scope of the obligation. Thus, only photographs used following the purchase of advertising space are concerned.

Article R.  2133-4 of the Public Health Code further specifies that the obligation applies no matter what medium the photograph used for commercial purposes is affixed on: billboards, press publications or online publications.

Regarding the content of the notice itself, Article R. 2133-5 sets out that “the notice must be affixed in a manner that is accessible, easily readable and clearly distinct from the advertising or promotional message. The presentation of the notice will be governed by rules and conventions of good practice defined by the industry, and notably by the French advertising regulation authority”.

Then, Article R.  2133-6 of the Public Health Code lays the obligation to mention the notice on advertisers who “shall ensure that the legal obligations found under Articles L. 2333-2, R.  2133-4 and R. 2133-5 of the Code are respected. To this end, they must ascertain whether the photographs used for commercial purposes which they purchase, directly or via third parties, were or were not retouched using image processing software with a view to slim down or flesh out the model's silhouette”.

Failure to comply with such obligations results, according to Article L. 2133-2, in a €37,500 fine which can be brought up to 30% of the expenses devoted to the advert.

The implementation of these new provisions raises several questions from a practical standpoint, which we address in our contribution for JIPLP: stay tuned!

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]