Intellectual property issues
Some very interesting intellectual property (IP) issues can be discussed in relation to the projects covered in this case study:
- Copyright (as artistic works) in original dressmaking patterns and sketches;
- Copyright as a model (a sub-category of artistic works) in a garment made from your own original pattern. This might be relevant if the original garment is in the nature of a prototype which the student hopes to commercialise;
- Original garments could also be registered as registered designs;
- Copyright as artistic works in original motifs and logos embroidered on or otherwise placed on a garment – these cannot be copied without permission;
- Embroidery designs downloaded from the internet will usually only be made available on provision the user agrees to certain terms and conditions of use (sometimes called a licence) – generally this will be personal, non-commercial use;
- If a design is declared to be 'freely available for any use', or 'in the public domain', anyone can use it for any purpose;
- Old designs (50 years after the death of the artist) are no longer copyright and are freely available for use (unless they are also a registered trade mark). Although the use of traditional indigenous designs is not copyright infringement, it might be offensive to persons of the particular culture. It is good practice to obtain the consent of the elders of the relevant tribe or ethnic community;
- Motifs, logos, and slogans on a garment might also be protected as registered trade marks – this prohibits an unauthorized person from using it,or one that is similar, for commercial purposes for the same goods or services for which it is registered. (Although under trade mark law it would seem that a student could use a trade mark as a motif on a garment for their own personal use – the trade mark is likely also to be copyright and therefore protected by copyright law);
- Innovative fabrics can be registered as patents . In practical terms this means the method of manufacture is protected. Only persons authorised by the patent owner are permitted to manufacture the fabric and conditions are likely to attach to any subsequent use of the fabric.
Thornton Hall v Shanton
In 1989 the New Zealand business known as Shanton Apparel was taken to court for purchasing and copying a dress made by another business, Thornton Hall. The dress made by Thornton Hall was on sale for $248.50. The copy made by Shanton was on sale for $37.50. The judge said that Shanton's dress looked like a copy of the dress made by Thornton Hall and that Shanton had infringed the copyright in the underlying pattern and drawings of the Thornton Hall dress (even though Shanton's designer had not seen the underlying drawings or pattern).
Levi Strauss v Kimbyr
A 1993 court case in New Zealand involved two manufacturers of jeans. Levi Strauss had trade mark registration in New Zealand for a protruding tab device of contrasting colour applied to the rear pockets of its jeans and shorts. Kimbyr sold Wrangler jeans with a reddish orange protruding tab bearing the name "Wrangler". Kimbyr also sold Oke jeans which had a green protruding tab on the right rear patch pocket, roughly opposite the position of the Levi's tab. The court found that Kimbyr had infringed Levi Strauss's trade mark.
The Hoodie
The generic hoodie is so commonplace today it is unlikely to be subject to copyright. The addition of a lined hood might be more unusual and could possibly be a separate registered designs . If it is, it will be in the online register of designs at the Intellectual Property Office (www.iponz.govt.nz). It seems unlikely as different fabrics and styles of hoods could make the lining aspect commonplace – they are already common in raincoats and parkas for instance.
The Possum fur and Fabric Scarf
The technique of twisting possum fur into fabric is apparently well-established in New Zealand. This seems to indicate that it is not protected by intellectual property rights. However, if this technique is protected by a patent you cannot use it for commercial purposes without a licence from the patent owner.
If it is not patented then the defence of fair dealing with copyright works for research and private study allows students and teachers to "reverse engineer" the process to work out how it has been done.
Fashion in the USA
In the United States there is no copyright or registered design protection for the design of fashion garments. Piracy of designs is common but is thought to keep the industry vital. Two characteristics of the fashion industry help it to survive without intellectual property protection. (1) Obsolescence – clothes become unfashionable long before they wear out; (2) Anchoring – copying actually persuades consumers that 'everyone' is wearing the new fashion. However, even in the United States, designers have some IP protection through their registered trade marks.
Copying of artistic works for educational purposes
The Copyright Act 1994 section 44(2) permits the making of one or more copies of all or part of a literary dramatic, musical or artistic work by a teacher or student (provided the copying is not done by a reprographic process*) – "In the course of preparation for instruction; or For use in the course of instruction; or In the course of instruction; or After the course of instruction".
This provision allows Technology students and teachers to copy, for instance, clothing that is available in the local shops, provided it has not also been protected by a registered design. Note that the copying must be carried out by the teacher or a student on the course and the copying must only be for the purpose of the course of instruction. For instance, students could not sell any copied articles they make in class. The provision works another way too – it will allow students within a class to copy one another's original creations for the course of instruction.
*"reprographic process" means a process for making facsimile copies or an appliance for making multiple copies, such as a photocopier. If the original work is held in electronic form it includes copying by electronic means.
RSS Feed
