Introduction
While it is a known fact that the fashion, also known as apparel industry, generates trillions of dollars annually along with employing millions of people across the globe, the tacit contribution of fashion to everyday life often goes unnoticed. Considering the broad spectrum of categories that fall under fashion, it has become a global phenomenon that is universally understood. Initially, garments and accompanying accessories were only for functional purposes but now in the era of ‘beauty gurus’ and ‘influencers’, fashion is a manifestation of self-identity and an expression of aesthetics that transcends mere utility. And yet, it remains an industry substantially weak viz-a-viz the legal protection offered. A sui generis requirement for fashion law arises because the protection to be offered in the fashion industry is far-ranging and not limited to one facet of intellectual property (“IP”) such as patents, trademarks or copyrights.
Legal Protection Offered in India
A creator (for the purposes of this Article, the terms creator and designer are used interchangeably) can avail different kinds of protection for their work. The current IP Acts of the country, although frequently amended, have major grey areas that do not solve all issues that crop up in the fashion industry. For example, “visual appeal” cannot be granted protection.
In India, a major component of the fashion industry is the indigenous and handloom creators. However, the current method of safeguarding their interest is far from ideal. The Indian IP Acts protect merely some components of fashion. For example, the Designs Act, 2000 protects the registered designs and any person who claims to be the proprietor of any new or original design can apply for registration of such design.[1] However, as per the Copyright Act, 1957, a design registration and copyright over an article cannot co-exist.[2]
Neither the Copyright law nor the Designs Act provides complete protection to the players in the fashion industry. The Copyright Act protects the original expression of the “artistic work” whereas the Designs Act protects industrial application of the design.[3]
Problems with the Existing Protection Offered
An important characteristic of the fashion industry is its dynamism. To stay afloat, it is necessary to keep up with constantly changing trends. Hence, to be successful every fashion-house releases several lines of articles in a year. Keeping that in mind, the requirement of registration under the current Acts may pose as an encumbrance because of how time-consuming it is. The procedure for registration may take up to a few months, which far exceeds the shelf-life of an article. In the absence of registration, no protection is offered and subsequently the danger of the creator’s work being exploited or worse, the creator not being able to exploit his work in a manner chosen by the creator looms large.
Moreover, pecuniary damages when it comes to fashion disputes are usually not exceeding Rs. 50,000.[4] The threshold needs to be altered immediately as it undermines the value of fashion articles, especially luxury fashion articles which are typically the subject of litigation.
Moreover, the problem in the fashion industry is that if the core design is copied but the rest of the accompanying elements such as the fabric used, the pattern of the garment etc. are mutated, it can create the impression of the work being not ‘copied/infringed’ and it becomes difficult to seek remedies for piracy under the existing legislations.
The Problem of Knockoffs
Take the example of a local Kanchipuram Saree artisan, whose work is copied by larger fashion houses and sold on a wider scale. Local handloom creators often lack the resources to secure IP protection. Additionally, for local creators, a small loss in income could result in the entire business shutting downbecause they cannot compete with premium fashion houses. Hence, in a country like India where indigenous local handlooms exist in abundance and contribute to the fashion industry, there is an urgent need for holistic legislation that affords protection to their work not limited to the right to exploit but also a right that can be enforced in cases of piracy.
Further, in India street-shopping in Sarojini Nagar in Delhi or the Linking Road in Mumbai are largely popular, every block has knockoffs that are being sold for one-fourth or even less of the original. In an era where consumerism and technology are married, Instagram and Facebook stores have also popped up whereby luxury knockoff items are sold at throwaway prices. With the volume of knockoffs being produced it is almost impossible to initiate litigation against every knockoff. Moreover, even if litigation is commenced, it is a long-drawn process that takes years to conclude. Therefore, it is neither pragmatic nor possible for creators to pursue legal remedies against knockoffs. Subsequently, there is an urgent need to strengthen the legal ecosystem with respect to the fashion industry.
Fashion Law in the Pandemic
Fashion photography and promotional activities such as fashion shows are a sine qua non for the fashion industry’s operation. With the advent of the pandemic, everyone is confined to the four walls of their homes. Yet, the show must go on. The fashion industry has risen to the challenge in novel and inventive ways with remote photoshoots, self-shot editorials, what has come to be popularly known as ‘FaceTime Shoots’,[5] fashion shows through Virtual Reality (“VR”) and Artificial Intelligence to name a few.[6] The industry has acclimatized well to the challenges of digital promotion. However, it has raised pertinent questions regarding IP protection to be afforded to the new status-quo.
The first and foremost question that arises when thinking of such collaborative efforts is copyright law and authorship (not in the case of contract of service). In the pre-pandemic era, while such a position has elicited some debate, it seems much more pertinent now considering that the subjects of the photograph are not mere collaborators but are actively participating in directing the photograph. The distinction between ‘ownership’[7]and ‘authorship’[8]qua copyright law is essential in understanding the law’s nuance in protecting the subjects of the photograph.
Interestingly, Indian copyright law does allow for joint authorship. A question of joint authorship was raised before the courts in Najma Heptullah v. Orient Longman Ltd.[9] wherein it was held that contributions must be indistinguishable and a result of close and active intellectual collaboration. While joint authorship was ventured into, no specific criteria were given to conclude the same. It is still a fairly nascent part of copyright law.
Virtual reality – What Does it Mean for IPR?
In the fashion industry, the trend of VR has caught on to solve the problem of consumers who cannot physically attend fashion shows. Through VR, a stimulation akin to the fashion show can be viewed exclusively by the consumer. Tommy Hilfiger and his collaboration with Zendaya was displayed through an immersive VR experience in 2019.[10] The use of VR is not just limited to hosting fashion shows. It can also transport the consumer to trial rooms and stimulate social settings to better consumer experience.
While a viable option, VR is accompanied by a host of IP problems that may arise. This has a twofold impact on intellectual property rights (“IPR”) of the fashion houses employing VR, firstly; the detection of unlawful and unauthorized usages of a fashion house’s trademark or copyright in the articles of the house becomes much harder, secondly; it is harder to conduct a diligent search to determine whether a particular trademark of a similar kind already exists on VR platforms. In essence, the absence of a search engine for VR content increases the possibility of infringement and makes it harder to conduct prior-art equivalent searches.
Further, there is an asymmetry of bargaining power between retailers and the fashion house in the circumstance that the articles of the fashion house are being sold via VR technology. The fashion house might be at a disadvantage as it is in need of distribution through this unique platform and therefore may agree to the usage of the house’s mark on terms favorable to the retailer. Moreover, the possibility of disparagement also increases in the instance of VR sales and marketing.
Further, complex questions of ownership may also arise. Is the content created for the VR platform owned by the platform owners that convert the work given to them by the fashion house, thus qualifying it as derivative work, or does the work remain in the ownership of the fashion house? Such terms must be conscientiously negotiated between the fashion house and the VR platform owners to ensure that ownership of content lies with the fashion house in the license agreement. More so in the case of events such as VR fashion shows, where there are multiple collaborative efforts involved, ownership and authorship must be clearly delineated in the terms of the agreement.
Influencer Law in India
Be it gen-z, millennials or those from the older generations, an influencer’s content is known to all. Essentially, influencers are individuals who, via their content on social media platforms, impact the decisions taken by their watchers. The latest marketing and brand-promotion strategy adopted by brands is ‘influencer marketing’. In such an agreement, the influencer receives products from the brand, free of charge, and promotes the product through various means. However, the role of influencers is not limited to promoting the products itself. Unlike earlier times where only celebrities would be brand ambassadors for a particular brand and take on sponsorship agreements, new-age influencers such as YouTube creators, are also signing on brand ambassador deals.
This new age marketing technique is not under the regulation of any formal law or rule. However, there have been certain regulations and there is an effort to incorporate these Influencers in order to fix their liability like in Consumer Protection Act, 2019,[11] Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020 (“the 2020 Guidelines”)[12] and Advertising Standards Council of India’s Code for Self-Regulation in Advertising.[13]
The 2020 Guidelines have included the power to impose penalties and prosecute for “misleading advertisements” by such influencers. Further, the Code for Self-Regulation in Advertising specifies the rules and regulations to maintain the authenticity of the claims being made in advertisements by the influencers and celebrities. By issuing such guidelines, the authorities are able to keep these influencers under a watch, in order to protect the creators and the consumers.
Following the global trends, proactive efforts have been taken by industry bodies such as Fashion Foundation of India (“FFI”) representing the leading designers taking up IP infringement issues and other issues affecting the industry. These industry bodies are not only concentrating on the protection of IPRs, but are also involved in research through theirResearch and Analysis cell to provide various aspects of fashion industry. Additionally, FFI is also setting up a legal cell to assist the design houses in the matters relating to IPR, licensing, arbitration etc. Some of the other noteworthy industry organizations are Fashion Design Council of India (“FDCI“) and Apparels Export Promotion Council (“APEC“). However, internal issues, like cumbersome and time exhausting procedural problems, take precedence over the solving an actual hitch.
Even today there is a lack of understanding for IPR in India and smaller organisations in securing justice for rights which are infringed which circles back to the need for a formal law to be secured in place to regulate the trillion-dollar industry.
Conclusion
The fashion industry is ever evolving and has a certain impact on the life of each individual. Thus, it becomes extremely essential to draft and implement formal and strict laws for this industry. The need for a comprehensive fashion law program can be approached in two ways; either through a separate legislation categorically dealing with fashion law or through amending the existing legal mechanisms to make them more conducive to the fashion industry.
The protection offered in the Indian legal regime is deficient as the fashion designs and designers are not formally recognized. It is pertinent to include them in the statutory provisions to protect their rights from any form of infringement.
Furthermore, the Covid-19 pandemic has reduced the buying capacity of the consumers which can easily boost the knockoffs industry and other sort of copies of the designs ofluxury designers. Therefore, in order to reduce the impact of such likelihood, thepenalties imposed should be increased to ensure protection of the rights of the original creators.
Due to the advancements in the fashion industry in terms of the VR shows, online photoshoots or influencer-driven advertisements, the accountability of the infringers needs to be fixed and assessed by way of appropriate redressal mechanisms. Moreover, the increase in the consumer base of e-commerce platforms adds to the essential requirement of a formal law to protect from piracy and infringement. This shall strengthen the legal ecosystem of the fashion industry.
[1] § 5, The Designs Act, No. 16 of 2000, India Code (2019).
[2] § 15(1), The Copyrights Act, No. 14 of 1957, India Code (2017).
[3] Ritika Private Limited v. Biba Apparels Private Limited, (2016) 230 DLT 109 (India).
[4] § 22, The Designs Act, No. 16 of 2000, India Code (2019).
[5] Maria Bobila, How to do a facetime photoshoot, according to a professional photographer, Nylon (Apr. 13, 2020), https://www.nylon.com/fashion/how-to-do-facetime-photoshoot.
[6] Puneet Kapani, Virtual Meets Reality: The Future of Fashion Shows, Entrepreneur (Oct. 16, 2020), https://www.entrepreneur.com/article/357898.
[7] Section 17 of Copyrights Act, 1957
[8] Section 13(2) of Copyright Act, 1957
[9] Najma Heptulla v. Orient Longman, AIR 1989 Del. 63 (India).
[10] Nadia Neophytou, Tommy Hilfiger, Zendaya Unveil Immersive Online VR Fashion Show, The Hollywood Reporter (Sept. 3, 2019), https://www.hollywoodreporter.com/news/tommy-hilfiger-zendaya-unveil-immersive-online-vr-fashion-show-1236578.
[11] Consumer Protection Act, No. 54 of 2019, India Code (2019).
[12] Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020, Gazette of India, pt. III sec. 4, (Aug. 2020).
[13] The Code for Self-Regulation of Advertising content in India, Advertising Standards Council of India, https://ascionline.org/images/pdf/code_book.pdf.
This article has been authored by Advocate Namrata Pahwa. She was assisted by Ms. Namah Bose, a student of RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Series, initiated to bring forth discussion by experts on contemporary legal issues.