Selling dresses online with well known character design

'Is it legal', 'can I do this' type questions and discussions.
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Waddell
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Selling dresses online with well known character design

Post by Waddell » Tue Jul 29, 2014 12:04 pm

Hi,

I would like to sell dresses online which are easily recognisable as a dress worn by one of princesses (character called Elsa) from a children's film called Frozen.

They also have a broach attached with a picture of the character (could be easily removed before sale).

I plan to advertise them as 'Elsa inspired costume dress' or 'Frozen themed costume dress for toddlers' or something along those lines.

I have already made an order, but now I'm worried about the legalities.

Thanks in advance

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AndyJ
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Post by AndyJ » Tue Jul 29, 2014 1:29 pm

Hi Waddell,
From the way you have worded your post I assume that you are not manufacturing these dresses, but buying them from a wholesaler or manufacturer. My guess is that your supplier is based outside the UK, possibly outside the EU.

Normal fashion items are rarely subject to copyright in their mass-produced form, because design right is intended for such items. Infringement of design right occurs when another design produces the same overall impression on an informed user as the original. However, this must take into account the designer's freedom to achieve a practical result. And before a design can be registered, it must be 'new' in the sense that it does not copy an earlier design, and have an individual character. So when applied to fashion items, it is very hard to come up with a design for every day garments (suits, shirts, dresses and so on) which meet these criteria of being both new and individual. However, the Elsa dress has a number of characteristics which probably does mean it is registerable, although I have not been able to discover if it has, in fact, been registered in the UK or EU.

However because this dress forms part of the character of Elsa, as portrayed in the film, it is not a normal fashion item. There is an arguable case that the costume may be protected as an artistic work for copyright purposes. This stems from the fact that the film itself was an animation and so it clearly meets the description of an artistic work, and UK law (CDPA Section 17(3)) prohibits the creation of a three-dimensional copy of a two-dimensional work. This is certainly what I would expect Walt Disney's legal department to argue if they were minded to object to these dresses being sold without a licence.

Which takes me back to my opening point. If you are not the person manufacturing these dresses, then you will not be liable for primary infringement (the actual act of copying) but you could well be liable for secondary infringement which covers such activities as importing, possessing and dealing in infringing copies.
It all depends on how similar the dresses are to the original, but by describing them as 'Elsa-inspired' you are inviting attention from the afore-mentioned Disney Corporation, who are well-known for the vigour with which they protect their intellectual property. At the very least you could find they may bring an action for passing-off.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Waddell
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Thanks

Post by Waddell » Tue Jul 29, 2014 2:05 pm

Hi Andy,

Thanks for that - yes - a wholesaler. They were purchased from China. It's difficult to how similar they are - certainly any 3 year old would easily identify them as an 'Elsa dress'. A bit naive of me to go ahead and purchase without thinking of this first. To be honest, they are all over the internet; I stupidly assumed it would be okay.

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