Copyight Concerns in art

'Is it legal', 'can I do this' type questions and discussions.
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littlewhispers
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Copyight Concerns in art

Post by littlewhispers » Mon Mar 09, 2015 9:09 pm

Hi

I am writing to inquire the state of copyright concerning outfits in regards to art. I am hoping to make my career as a professional artist and I wish to be clear as to the copyright laws concerning drawing clothing. I am concerned over whether the outfits I have drawn on my characters are close to those produced by manufacturers and would like to know what the law is in these cases. Is there any link or information you can provide that would help me with these questions?

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AndyJ
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Post by AndyJ » Tue Mar 10, 2015 11:29 am

Hi littlewhispers,
The legal situation regarding copyright in items of clothing (sometimes referred to as 'fashion') is slightly confusing. Ordinary, everyday mass-produced items of clothing are not protected by copyright but may be protected by design right which is somewhat different to copyright. Incidentally, what you want to do would not infringe design right. However individual one-off fashion creations (think of a Shilling hat) almost certainly will be classed as works of artistic craftsmanship and therefore protected by copyright.
The situation is due to become even less clear when a recent amendment to the Copyright Designs and Patents Act (CDPA) 1988, comes into force. The amendment repeals section 52 of the CDPA. Currently section 52 says (only the relevant part is quoted here):
52 Effect of exploitation of design derived from artistic work.

(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by—
  • (a) making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and

    (b) marketing such articles, in the United Kingdom or elsewhere.
(2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.
[...]
The effect of this amendment which is not yet in force, is unclear. It was supposed to be for the protection of high-value, aesthetic designs of furniture, but in theory there is nothing to stop a fashion house trying to claim infringement of the copyright. We await the wording of the secondary legislation which will bring the amendment into effect, and which may possibly clarify the types of work affected.
In most real world cases, the dispute is about garments which appear to be copies of originals - something the fashion industry has long had to put up with. However what you want to do is merely reproduce some designs in two dimensional artwork. Legally, in theory this is no different to producing the garment in 3D, but in reality I don't think it poses any risk of infringement because it doesn't challenge the economic interests of the fashion houses. To that extent it is pretty much the same as photographing the fashion pieces, and that has long been accepted as a fair practice not requiring the permission of the copyright owner if indeed copyright actually applies.
For more on the general situation concerning copyright and fashion, see this article published on the website of the World Intellectual Property Organisation (WIPO): http://www.wipo.int/wipo_magazine/en/20 ... _0007.html
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

littlewhispers
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Post by littlewhispers » Tue Mar 10, 2015 6:38 pm

Having read what you've wrote, I just want to clear up a few details, just to make absolutely sure. I would like to use designs based off those I've seen in catalouges, mainstream shops like new look, next, and fashion magazines, those being from other countries. Would it be acceptable to copy these designs, if I feel that they fit the character I want to draw in a graphic piece of work (Such as a comic or art print) I would like to publish one day? Or would it be better simply to tweak said designs to avoid any difficulty? It's the art I'd be selling after all, not the clothes

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Post by AndyJ » Tue Mar 10, 2015 8:54 pm

Hi again,
Because copying an illustration in a catalogue could amount to infringement I would strongly suggest that you alter your version as far as is possible within the contraints of what you want to acheive. The chances of being pursued by a clothing manufacturer for infringement are extremely small but, as I imagine that faithfully copying every last detail of the originals is not essential for your purpose, it would be wise to avoid any risk. Simple little tweaks like changing the width of lapels, or the positioning of pockets, and using different patterns on fabrics, is all that you need to do, because the fundamental design of most garments is fairly generic but for these sorts of detail.
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Post by littlewhispers » Tue Mar 10, 2015 9:33 pm

Would changing the colour count as a tweak also? And would even one little tweak be enough?

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Post by AndyJ » Wed Mar 11, 2015 7:32 am

Hi,
It's not really possible to give quantitative guidelines. The law says infringement occurs when a substantial part of another work is copied. Substantiality is determined in qualitative terms, ie has the essence or heart of the work been copied? You would need to try and analyse what makes the original 'original'. So if the colour was the key that made a garment unique, then changing that colour might be all that was required. To give you a real world example, here's a recent case involving two fabric designs, which shows the sort of things a court has to consider when determining whether there has been copying. Because the pattern on a fabric can also determine the look of the garment it is made into, this may well be a major factor in what makes a particular garment unique. However to take another example, the substance of a ladies little black dress will obviously not lie in the colour, but may be in the cut, ie where the seams occur and the tailoring. However in many cases there will be nothing special at all, in which case the design will probably fail to be copyrightable because there is no originality in it. This might apply to many garments of common design such as shirts, trousers, skirts and jackets.
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Post by littlewhispers » Sat May 02, 2015 9:01 am

So I imagine design right probably wouldent protect common design? Like a plain red shirt or mayby a plain skirt with a common plain star pattern, or a plain lumberjack jacket or a plain striped shirt?Like you said, theres no originality to these items, there common as anything and get redone over and over. Very basic, very commonplace

(Im a lil confused about design right)

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Post by AndyJ » Tue May 05, 2015 6:26 pm

Hi LW,
I don't want to go off topic too much on the subject of design right, because that is not what this forum is about. And design right has a number of variations which make it a complicated subject to cover in any detail.
However, as you say, for a deisgn to attract design right it needs to be 'original' in the sense that it is not copied from another, earlier design or is merely commonplace. To that extent a red shirt alone would be insufficient, but if the shirt exhibited unique styling features then it might qualify. The surface decoration (including colour or pattern) of an object can only be protected by something called registered deisgn right.
Design right (whether of the registered (RDR) or unregistered (UDR) variety) only has a fairly short life: a maximum of 15 years for UDR and 25 years for RDR).
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Post by littlewhispers » Wed May 06, 2015 12:59 pm

Ah okay.

So anything basic,unoriginal or commonplace seems safe.Good to know.Thaks for the info

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