Copyright protection in the fashion industry

Posted by Ben Evans, 5th March 2020
A recent judgment by Intellectual Property Enterprise Court (IPEC) has expanded the scope and interpretation of copyright protection within the fashion industry, allowing copyrights owners more opportunity to enforce their designs for clothing fabrics and textiles.

In this copyright protection case, Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148, Response Clothing Ltd (Response) sought to enforce their rights in a “wave” design textile against Edinburgh Woollen Mill Ltd (Edinburgh) when Edinburgh supplied samples of the “wave” design textile to third party overseas suppliers.

Hacon J’s primary consideration centred on whether the creation of the “wave” design textile on a loom met the criteria for “a work of artistic craftsmanship” pursuant to Section 4(1)(c) Copyright Design and Patents Act 1988. This approach was relied on by Response as the creation of the “wave” design textile did not include an identifiable graphic work in which they could base their claim in copyright and therefore in the alternative Response sought to rely on the “wave” design textile being protected on the basis of it being a “work of artistic craftsmanship“.

When considering the case and the artistic craftsmanship associated with mass produced work or work made on a machine, such as the “wave” design textile, Hacon J applied the New Zealand decision of Bonz Group (Pty) Ltd v Cooke [1994] 3 N.Z.L.R and the summary of what work would attract copyright in these circumstances:

  1. It is possible for an author to make a work of artistic craftsmanship using a machine; 
  1. Aesthetic appeal can be of a nature which causes the work to appeal to potential customers; and 
  1. A work is not precluded from being a work of artistic craftsmanship solely because multiple copies of it are subsequently marketed

Accordingly, it was held by Hacon J that the “wave” design textile did meet the criteria summarised in Bonz and would be protected by copyright on the basis that it is a work of artistic craftsmanship. EWM was therefore found to have infringed the rights of Response.

This decision has potential for significant implications within the fashion and textiles industries, with rights owners relying on artistic craftsmanship as an additional claim when seeking to enforce copyright in their designs and an increase in such claims being likely to follow.

If you would like any further information on this matter or have concerns regarding copyright protection and infringement please contact Blake Morgan’s Intellectual Property Team.

Ben Evans

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Ben Evans

Senior Associate & Chartered Trade Mark Attorney

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