We live in interesting times when originality is an increasingly contested word in art, fashion and music. But are fashion battles worth fighting in courts? Delhi-based fashion designer Anupamaa Dayal is suing a South American apparel brand, Rapsodia, on the grounds that it has plagiarised her designs. The designer’s label, named after herself, emphasises hand-printing and needlecraft using Indian motifs. Argentina-based Rapsodia’s website has been blocked in India following the dispute, but the ensuing legal battle would be an interesting one to watch.
Research into the messy field of fashion design makes one wonder if courts are the right place for those who would rather be celebrated on catwalks. Intellectual property is a tricky business, more so when it involves subjective aesthetic ideas like design and beauty, unlike, say, pharma formulations. Fashion fights involve financial costs that may not justify a legal challenge. You are damned if you do and damned if you don’t.
Dayal says her designs were copied “in totality” and wants suitable compensation, along with an apology.
Fashion products are governed by copyright laws that protect original artistic works including fashion design as ‘graphic art’. That intersects with the Designs Act passed in 2000, under which a copyright is lost when you go for a registered design. Copyright is more for unique works, not mass-produced items. Fashionable clothes worn by a large number of people can fall between the two stools of aesthetics and utility.
In 2016, leading designer Ritu Kumar, who runs a brand called Ritika, fought with rival Biba Apparels, saying her copyright had been infringed in a set of ensembles. Biba said the products were industrial and copyright laws did not apply. The court ruled that Ritika’s copyrights had expired anyway. You could liken this to many Indian pharma companies that wait for blockbuster drugs to go off-patent after a period to make their generic imitations.
The Designs Act covers a product’s pattern, configuration, ornaments, colours and shape, and applies to an entire ensemble, not just individual features. Design rights enjoy a 10-year shelf life and can be renewed. But things are not easy to prove, and there are quite a few intersectional grey areas.
The fashion industry’s plight seems at variance with music’s, in which remixing a song requires approval from the original creator. Section 14 of the Copyright Act 1957 provides omnibus rights to original owners, including translation, development, reproduction and communication. Remixes are derivatives and identified clearly as such.
Sadly, it seems such privilege doesn’t extend to fashion design. But wholesale design theft seems worth waging a legal battle for.
Things are getting murkier for designers in an increasingly complex world. For some, it may spell more opportunity, whereas for others it screams threat. Social media and the internet have made it easy for anyone to be “inspired” and do some copycat stuff that is not easily policeable. In this, trademark rights are separate from design. Fashion patrol, usually an expression to describe those who separate the hot from the cool in the business of aesthetic dressing, may now require a less enchanting species like web design crawlers to spot copycats.
Then there are the legal fees. Officially, global conventions such as the TRIPS agreement and organisations like the World Trade Organization offer avenues for redress. But anyone who has heard enough lawyer jokes would know it might be easier to drop a case against a rival designer than pay one’s legal counsel.
It is getting more complicated with the rise of artificial intelligence, which is giving sleepless nights to creative people the world over. As the automated generation of anything and everything—from voice and graphics to words and the likeness of paintings—becomes easier, the lines between law and creativity get increasingly blurred. Non-human actors seeking intellectual property rights is a new frontier that lawmakers need to recognise soon.
I recently generated what I thought was some awesome artwork by using AI engines. It was as easy as entering the right search string on Google. AI may do to visual design what the Industrial Revolution did to artisanal products. The street consumer is unlikely to acknowledge the intellectual nuances.
Fashion law case studies point to wrangling on nuanced points—from the partial use of visual identifiers of leading brands to distribution issues on designer products, apart from copyright vs registered design wrangles. Fashion designers are better off knowing the difference between originality that craves appreciation or awards, and creativity that generates sales.
It is difficult to imagine something like the ‘copyleft’ movement in the software industry. Copyleft licences like the GNU General Public License and Creative Commons mandate that derivative works or modifications of an original should also be distributed under the same conditions or a compatible licence, ensuring the freedom to use, modify and redistribute. Such teamwork could work well for, say, socially conscious fair trade or sustainable fashion folks, but not for designers who want more butter on their bread.
Picking a leaf off Bollywood producers, fashion designers may be better off thinking about the publicity a court case might generate for their brands than the compensatory gains from protracted legal wrangles. That would be a reverse swing worth betting on.
(Views are personal)
Madhavan Narayanan
Reverse Swing
Senior journalist
(On X @madversity)