Eco-Fashion is for the birds, so protect your Art ❤️

Happy #WorldIntellectualPropertyDay! The theme this year is 'Innovation for a Green Future'. There is no better way to celebrate it than to discuss your rights as a fashion designer. This blog piece discusses sustainable fashion in Jamaica and how the Copyright Act protects your Art.

Most people associate fashion with vanity and superficiality. Certain characters would even trivialize the importance of deciding the perfect 'blue' to go with an outfit only to be told off by Miranda Priestly about the importance of fashion! #TheDevilWearsPrada. Frankly, we, here at The Creatives' Rights, agree with Miranda Priestly; everyone participates in fashion, whether your taste is a cashmere sweater from Macy's or a Balmain jacket. It is a part of your everyday life.

However with climate change and due pressure from environmentalists, many industries have opted to 'go green', and the fashion industry has also followed suit (get it?🤣). The world is rapidly changing and the need for eco-friendly outfits and jewelry are changing with the times.

More sustainable fashion can be defined as clothing, shoes and accessories that are manufactured, marketed and used in the most sustainable manner possible, taking into account both environmental and socio-economic aspects.

There are two perspectives of sustainablity as it relates to fashion. One particular school of thought is the socio-economic perspective. It considers the ordinary manufactory and its workers, and the conditions under which they are expected to work. The environmental perspective considers careful and efficient use of natural resources. Luxury brand designers such as Tom Ford, take the view that in designing quality clothing for his buyers, they'll be able to wear it for a long time and pass it down to their daughters and sons. While other brands such as DÔEN have made it their duty to not only produce durable clothing, but also to use natural materials, and cruelty-free products.

Eco-friendly fashion in Jamaica 

Jamaica has taken the lead in eco-friendly fashion long before the complete acknowledgment of sustainable practices by the global fashion community. It has been our way of life.

On the beaches of Negril, Montego Bay, and Ocho Rios, vendors are found selling to tourists souvenirs such as straw bags and hats, and necklaces made from beads and seashells. These innovative designs are also seen on the runway such as the annual Caribbean Fashion Weeks.

When it comes to every day wear, Jamaicans are often seen in crocheted dresses, bags or bikinis and vegan leather or calabash material bags.

The beauty industry in Jamaica has also made their mark by creating all natural products for women with kinky or curly hair. Jamaica is known for their Castor Oil which is known for stimulating hair growth.

With the recent on-set of #COVID19, crochet designers have been designing crocheted masks, which are akin to the surgical masks. There are a few people who question the practicability of the design. #StayHome #StaySafe

The Fashion Creatives' Rights?

With the rise of eco-fashion, it is also important to protect your inventions. These inventions are essentially intangible ideas that can easily be stolen by others. Intellectual property is the body of law which protects that creative process.

The domain of copyright is the protection of literary and artistic works. These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases.

Fashion law, or Apparel Law, is an emerging area of law which involves a compilation of laws, one of them being Intellectual Property. This blog post will be focusing on a fashion designer's Intellectual Property rights, specifically Copyright.

Fashion Law and Jamaica's Copyright Law

Jamaica's Copyright Act of 1995 was modeled off of the UK Copyright Designs and Patents but closely resembles the US Copyright Law. (The Act has since been amended in 2015 to include definitions and more provisions.) The relevant sections for our discussion are section 5 and 6 of The Copyright Act (1995). In summary, it provides that copyright property may subsist and apply only to the following categories of work:

(a) original literary, dramatic, musical or artistic works; (b) sound recordings, films, broadcasts or cable programme; (c) typographical arrangements of published editions...

Now, a fashion designer would glance at the Act and come to the conclusion that the Act does not protect them. However, the drafter of the Act establishes a wide definition for what can fall under the category of 'artistic works'. The Act defines the following terms that are integral to our discussion:

Artistic works is defined as: -

(a) a graphic work, photograph, sculpture or collage,whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship to which neither paragraph (a) nor paragraph (b) applies.

Graphic work is then defined as: (a) any painting, drawing, diagram, map, chart, or plan; and (b) any engraving, etching, lithograph, woodcut or similar work...

What does this mean? It means that in order for a fashion designer to protect his/her designs, it would be considered under the category of graphic work. This means that the designer would make an application wherein drawings of the design would be submitted.

In the case of a jeweler, his/her design would be categorised as a work of artistic craftsmanship to which para (a) or (b) of Artistic works definition does not apply. In the United States of America, jewelry is considered under the category of visual art.

But does this offer full protection to the fashion designer?

What does case law say?

Let us use a recent discussion on #Twitter as an example. A Twitter user posted sketches of carnival costumes she had designed. The Twitter user soon after posted the paper work of the copyright in order to reassure users who voiced their concerns that they may be stolen and replicated. One concerned user expressed that the designer probably should not have posted the designs as someone could easily change the color and replicate the design which would infringe on her copyright protection. Another user replied stating that the designs also played a part in the copyright.

Unfortunately, the jurisprudence in Jamaica has not yet developed in this area of law. However considering that our Copyright Act is similar to the United States of America's Copyright Act, we will direct our attention to their case law for some guidance. The landmark case of Star Athletica v Varsity Brands, Inc., et al 580 US _ (2017) brings some clarity to this issue where the case introduced a two-pronged 'separability test'.

Before we get to the fun part, here's a run down of the #FACTS :

1. Varsity Brands designs and manufactures athletic clothing and accessories.

2. Varsity received copyright registration for the two-dimensional artwork of the designs at issue in this case.

3. Star Athletica also made and advertised similar designs.

4. Varsity sued Star and alleged, among other claims, that Star violated the Copyright Act.

5. Star counterclaim included that Varsity had allegedly made fraudulent representations as the designs were not copyrightable and was in fact a "useful article".

Now, here we are at the decision of the United States Court of Appeals for the Sixth Circuit which was a 6-2 decision for Varsity Brands.

The Majority Opinion by Clarence Thomas (only black man on the bench for this Appeal👏🏿 for those who care about #blackexcellence) outlined the test as:

1. A feature of a useful article is copyrightable if it can be perceived as a two- or three-dimensional artwork that is separable from the useful article and if it would be a protectable pictorial, graphical, or sculptural work on its own (or if applied to another medium, such as a canvas).

2. To be copyrightable, a design element of a useful article must be able to be identified separately from the article and be capable of existing separately from the article.

In more simple terms, the Courts will look at if the feature could be removed and sold as an artwork, separately from the dress, bag or shoe and whether it could stand on it's own as an artwork and not a replica of the original design in another medium.

For eg. the polo man on the Ralph Lauren Apparel brand, would that be able to be separated and sold as a statue? Well, that would be for the decisionmaker to consider when deciding if a design is copyrightable.

As for the cheerleading uniforms, the Court found that the chevrons and stripes that were found on the uniforms were COPYRIGHTABLE but the design and cut was not. The Court also found that the design and cut were utilitarian and could not be subject to copyright. In simpler terms, uniforms are for everyday, practical use and not for fashion. This could also be said of a lamp which was also the subject of a copyright dispute subsequent to the Star Athletica case. The basis of Court's reasoning in both cases involving uniforms and lamps seem to be that it would be unfair to copyright innovations that are too commonly used by the average person.

So, now... 🧐

What does this mean for the Twitter user who shared the sketches of her design? Do you think the features of her carnival costume can be separated from the design and serve as a piece of artwork? Taking into consideration that beads and feathers are a common feature of most Caribbean carnival costumes? Could the beads and feathers be removed from the wired tops and bikini bottoms to make an art piece that is original and obviously belongs to HER? Our answer is...

Possibly, but that is for our courts to decide but first it is for you to litigate these issues as they arise. It is also possible that this test is not adopted by our courts and therefore not binding. However, a skilled attorney may be able to convince the court of what the law ought to be if it is in keeping with our Copyright Act.

**Please note that all items discussed in this article can be patented and trademarked. This blog article is limited to copyright. See future posts for more.

Cosmetics

Similarly to cooking recipes, the ingredients of a hair product cannot be copyrighted. There are other ways in which a creator can copyright his/her brand by registering:

• the video and music used in the advertising

• the advertisement itself

• any illustrations, images or text on the packaging

• the product website(s)

• NB: These examples also apply to other fashion design categories (handbags, jewelry, clothes, etc.) and is not exclusive to cosmetics.

**Also note that all items discussed in this article can be patented or trademarked. See below for short discussion on patent.

Handbags, Purses and Shoes

These items may be subjected to the same copyright restrictions as clothing. The United States' general rule is that copyrighting the cut and shape of a design would create an unfair monopoly as bags serve a utilitarian purpose. In Taiwan, the case of Celine Société Anonyme v. 2 R Int'l Co., Ltd., 107 Min-Zhu-Shang 15, October 2019, the Supreme Court found that "the overall shape and design of the bags are for the primary purpose of facilitating effectively the portability and other inherent functions of bag-shaped appliances, rather than to convey a thought or feeling with artistic skills." As mentioned before, there aren't much fashion law cases involving copyright in Jamaica.

In the meantime, do not be discourage because while the overall shape and cut of a bag cannot be copyrighted, it may be patented! Jamaica's Patent Act of 1857 describes an invention as being "any new and useful process (machines, etc) or must be a new or useful improvements of an item." Upon a successful petition to the Governor General of Jamaica among other steps, the Patent Holder would be granted the full and exclusive right and liberty to make, construct, use and sell the new invention, discovery or improvement. The threshold of patent is more difficult to meet as the Petitioner must prove that the invention is new and unknown to Jamaica.

But that is for another blog! 😊

Jewelry

Luckily for jewelers, they CAN copyright their designs as it would be regarded as artistic works under the Copyright Act of Jamaica.

In the US, an original jewelry is automatically copyrighted once it is created.

Unlike clothing, a piece of jewelry may not be subjected to a 'separability test' and would only have to prove originality. This means that a jeweler should register their designs to protect it so that if another jeweler tries to copy the designs, it is easier to establish originality and bring an action against the offender for an infringement of your copyright.

**Also note that all items discussed in this article can be patented and trademarked.

So now you're wondering, "how can I protect my Art❤️ from being broken, ripped apart and ... "

Ok, I got carried away... here's how:

• Register artistic works under the Copyright Act by submitting copies to the Jamaica Intellectual Property Office.

• Trademark the name and logo of your design.

• Patent, if the invention is new to Jamaica

• File a civil suit for damages and/or an injunction if you suspect that someone has copied your design (s.32 of the Copyright Act)

It is always best to consult an attorney-at-law before starting any process as outlined above.

Thank you for making it this far!

Did you learn anything new?

Let us know what you think by emailing us at creativesrights@gmail.com for inquiries or more information! #StaySafe