ELZABURU has had the pleasure of working together with the publisher Thomson-Reuters Aranzadi on Fashion Law, a pioneering work in Spain on the subject of fashion law, which was presented on 16 April.

In these short weekly summaries, the professionals at ELZABURU who participated in the work offer us a brief outline of their contributions:

Protection of fashion through copyright

We cannot resist including in this summary the quote from Balenciaga mentioned at the beginning of the chapter. The Basque couturier remarked that a couturier must be an architect for design, a sculptor for shape, a painter for colour, a musician for harmony, and a philosopher for temperance.

This desire to promote fashion design to the category of work of art also extends to the legal front, in efforts to extend copyright protection to a variety of creations, mostly textile creations, whose natural source of protection is something quite different.

This is not surprising, given that the protection offered by copyright is in many respects more beneficial than that offered by industrial designs, for example. The most obvious advantage is the duration of copyright protection (70 years post mortem auctoris), but there is also the absence of any formal requirements for obtaining protection and the series of moral rights to which the author is entitled.

However, it is not quite so easy. A creation, whatever the artistic field, must possess a specific degree of originality and creativity in order to obtain copyright protection. It is thus a question of determining what constitutes an original creation that is eligible for this type of protection.

This is the most controversial issue in the area of copyright law. There is no definition in either the Copyright Act or the Industrial Design Act that might serve as a basis for determining which creations are covered by copyright and which ones call for other means of protection, such as designs or unfair competition law.

However, based on the most recent case law, it appears to be a question of degree rather than concept. That case law also focuses on the different purposes that designs and copyright are intended to serve, which would imply that the choice of one means of protection or the other would be determined to a certain degree by the extent to which the design is intended for industrial use and the intellectual works are intended to serve an ornamental, decorative or merely aesthetic purpose.

The task of the legal practitioner in this field is therefore to pinpoint the boundary between the originality required of a design (Article 5 of the Industrial Design Act refers to novelty and individual character) and that required for it to qualify as an artistic work.

The reality is that prêt-à-porter fashion is intended for mass production and consumption and therefore the natural source of protection would be that offered by an industrial design, which has a much shorter term of protection and is aimed at fostering, among other things, the smooth functioning of the market and of production and marketing of consumer goods.

Therefore, few creations in the world of fashion can be considered especially creative and afford their creators the privileged status of author of an artistic work. But who would dare to say that Yves Saint Laurent’s famous dress evoking Mondrian’s “Composition with Red Blue and Yellow” is not a work of art?

Author: Patricia Mariscal 

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Blog entries in the series Fashion Law:

1.Trademark protection in the fashion sector (23.04.2018)

2.Design protection in the fashion sector (30.04.2018)

3.Patent protection in the fashion sector (07.05.2018)

4.Protection of fashion through copyright (21.05.2018)

5. Image rights in the fashion sector (28.05.2018)

6.Fashion Law. Data Fashion (04.06.2018)

7.Counterfeiting in the fashion sector (11.06.2018)

8.Exhaustion of rights in the fashion sector (18.06.2018)

9.Corporate reputation in the fashion sector (25.06.2018)

10. Protection of the commercial imagen of a fashion brand (04.07.2018)

11. Websites, Apps & Social Networks (13.07.2018)

12. Valuation of intangible assets (17.07.2018)

13. Licensing (06.09.2018)