Hey! Hands off my IP! (Copyright)

As promised, FTL is continuing with the “Hey! Hands off my IP!” series of blog posts. The first post in the series was on trade marks, you can access it here. Next we take a look at copyright.

It’s a common error to mistake copyright as a registerable right and get it confused with a trade mark. This piece aims to demystify the differences, provide greater clarity on copyright and explain why it’s a useful tool for those in the fashion/fash tech industries.

 

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Protect your designs and avoid copyright infringement by reading on…

What’s copyright?

Contrary to some general public perception, copyright cannot be legally registered in the UK, which is one of the key differences often confused with a trade mark.

Recently when listening to the radio (yes I’m a retro gal!), I heard numerous presenters assuming that certain objects, lyrics and recipes need to be registered to attain copyright. WRRRRONG!! This really infuriates me…

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Glued to my radio!

Copyright automatically arises on the creation of a Work. An idea alone cannot generate protection, the idea must be Recorded to become protectable under copyright. The Work must also be Original.

What does it mean to be a Work, Recorded and Original?

A Work: to be classified as a Work, the piece must fall within one of the following categories (for the legislation buffs out there, the relevant statute is here):

• a literary, dramatic, musical or artistic work;
• a sound recording, film or broadcast; or
• the typographical arrangement of a published edition.

For those in the fashion industry, this could include sketches of new clothing, handbag designs, shoe drawings, photographs of mock-ups or photos of the final product for example. However the garments themselves would not generally be protected by copyright, as it would be hard to drop them into one of the above categories.

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Copyright would exist in these very designs!

It’s worth noting that in other countries, garments can be protected by copyright due to their more openly drafted laws on copyright. This is the case in France, Germany and the US and was how Bijules could register its nail ring for copyright protection in the US.

Fixation: A further hurdle to leap before copyright protection applies is that the Work must be fixed. This means the literary, dramatic, musical or artistic work, for example, must be put “in writing or otherwise” (section 3(2), Copyright designs and Patents Act 1988, or CDPA for short!).

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“Record” everything to achieve fixation!

Originality: Finally, the work must be Original! It’s no good copying someone else’s work and then claiming copyright in it – that won’t work!!

Interestingly, it’s not necessary for the whole piece to be original for copyright to exist. Generally, the level of originality required in the UK is low; for example, copyright in calendars and competition cards have been accepted in the UK.

For fashion photographers, originality of photographs has raised questions, but European law states that:

“Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected… “

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Photographs are able to achieve copyright protection. Follow the steps outlined above to ensure they’re safe!

Who owns copyright?

Normally the owner of copyright within a Work will be the creator. However Works created in the course of employment by an employee will usually be owned by the employer, due to express terms in the employee’s contract.

Also, where a piece is commissioned, let’s say Vogue UK commissioned the famous milliner Philip Treacy to create an exclusive design as part of the 2016 100th year anniversary, it’s unlikely that Vogue would fail to formally contract with Treacy to secure Vogue’s ownership of any copyright in the design. So here, the commissioning party will typically own the copyright.

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Philip Treacy’s amazing creation for the late Alexander McQueen’s Spring/Summer 2008 collection. Wonder if Treacy was commissioned by McQueen and if so, who owned the copyright!?

How long does copyright last for?

Copyright exists from the moment a work has been created. The duration of this depends on the type of work created, by way of example, an artistic work affords protection for 70 years from the death of the author/creator.

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Vogue is celebrating its 100th year this year! Continuing the theme, copyright even exists in these vintage Vogue covers dating all the way back to 1916, provided the date of the author’s death was not before 1946 of course!

What rights does copyright give the owner?

The copyright owner has the exclusive right to do the following with the Work:

• copy it;
• issue copies to others;
• rent it out;
• perform, show or play it in public;
• communicate it to the public; and
• make an adaptation.

Are any rights reserved for a creator who may no longer own the Work?

The author automatically acquires a number of moral rights in relation to their Work including rights:

• to be identified as the author;
• to object to derogatory treatment of the Work; and
• not to have a Work falsely attributed to him or her.

What happens when someone breaches copyright?

Copyright is infringed if, without the permission of the owner, someone does, or authorises another to do, any of the acts that are exclusive to the copyright owner as outlined above.

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Universal sign for copyright. Stamp on all of your works capable of copyright protection to warn off any copyright thieves!

This can apply to the whole of the Work or only part of it and relates to direct or indirect infringement.

Round up

Being an automatic right, and not one that can be legally registered in the UK, copyright can often be difficult to prove. For example, a startup fashion business may create a wonderful design, which is then totally ripped off by large corporate retailer. The startup may not have filed evidence of its creation, which would prove originality prior to the date the corporate giant made a copy. The startup would therefore find it difficult to its ownership of the Work.

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Although your studio may only have humble beginnings, be sure to record your original works to benefit from copyright protection!

What can be done?

A way around this is to record and keep dated copies of your file drawings, plans and photographs. This will then go some way to prove you are the owner and that the Work does not belong to those trying to steal your work!

Copyright can be mind-boggling and legal advice often needs to be tailored on a case by case basis. If you’ve hit a copyright wall and don’t know where to turn, contact FTL via the contact me page.

Until next time…

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Battle of the Cities – NYFW or LFW?

Only one more sleep to go until the 62nd London Fashion Week! This week’s FTL post features ones to watch for the London Spring/Summer 2016 collections and gives a summary of New York Fashion Week’s highlights. Which do you think will come out on top? LFW or NYFW?!

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Let the countdown begin!

Dig the new breed

London effortlessly challenges its rival global counterparts during fashion week, showing some of the most commanding creative flair in the world. Amongst its staple brands treading the boards, like Burberry and Christopher Kane, there is a new breed of designers, so fresh they only recently showed their graduate collections. Those that have attracted the talent-scouts graduated from Central Saint Martins just last year, such as South London-based Caitlin Price, who also won the Armani scholarship and Richard Malone (featured below).

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Great British heritage brand Burberry, showcasing a pastel inspired finale.

NYFW highlights

But who can argue with the feat of NYFW, closing today, which has generated 900 million dollars in revenue, drawing in over 200,000 people. Highlight of the week was the Oscar de la Renta timeless elegance show, which was the fashion power house’s second collection following the death of its founder. Pieces included Spanish-inspired suits, ball-gowns and cocktail dresses from its creative director, British-born Peter Copping. The designer used bold floral prints, crimson palettes, lavish lace and abundant ruffles to create a truly classic de la Renta collection. Lowlight, personally, was Kanye West for Adidas idly named “Yeezy Season 2”. The military-inspired assortment was made up of nude and neutral-coloured hoodies, bodysuits and loose-fitting trousers, which drew many parallels with his last collection. Not only has this all been done before, it was done last season by the man himself! Time to give up the game Kanye!

Oscar de la Renta

Classic de la Renta – pure poetry!

Topshop partners with Pintrest

This week in London we will see Topshop team up with Pintrest to launch “Pintrest Palettes”. The savvy high street store is renown for its social media campaigns. The partnership will enable UK and US Pintrest users to create a custom colour palette based on Spring/Summer 2016 key colours via Topshop.com.

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Which Pintrest colour palette will you be this season?

LFW ones to watch

There’s so much jaw-dropping talent showcased during LFW, but for me it’s the new kids on the block that can be the most inspiring. FTL’s “ones to watch” are:

Richard Malone, graduating from Central Saint Martins last year with a Bachelor of Arts degree in fashion, he has already attracted attention from the fashion industry’s big-wigs. In 2013 his graduate collection was supported by the Grand Prix LVMH scholarship and he will show his collection as part of the Topshop-sponsored Fashion East collective this week. The label’s aesthetic has to date stemmed from structured silhouettes with contrasting hound’s-tooth fabrics and bold stripes. Pieces in Malone’s graduate collection invoked a 70s vibe with both cropped and bell-bottom flares on show. I’m excited to see what delights the upcoming collection will bring this week.

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Good luck to our new-comers on their debuts, the Frow be with you!

This is the Uniform’s Jenna Young is a fine arts textiles graduate of London’s Goldsmiths University. She worked in the luxury textiles industry for three years before launching her own label in 2013. Young also worked in fashion styling, and it was via this experience that her designs came to the attention of British Vogue fashion director Lucinda Chambers. The designer will also début as part of Fashion East this week. Young’s signature style is luxurious fabrics, no doubt stemming from her background. I predict plentiful silk organza and natural fabrics.

Marta Jakubowski completed the Masters of Arts program at the Royal College of Art and has already worked with the likes of Alexander Wang, Bruno Pieters, Hussein Chalayan, and Jonathan Saunders before embarking on her own label last year. In December 2014, the designer was chosen to show her Autumn 2015 collection for the British Fashion Council’s NewGen scheme. Wide velvet and cotton trousers in bold colours have played a key theme in Jakubowski’s collections to date. I’m hoping for a clever use of fabric and texture in her Spring/Summer 2016 collection.

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A personal FTL favourite – the Matlock established John Smedley, here’s to the northerners!

The veteran luxury British brand, John Smedley, and a long-time love of mine, is finally launching an out-and-out women’s wear collection. This I have to say, I am very excited about! Pip Jenkins, head designer of the John Smedley women’s range, said the collection will include “a lot of lighter, sheer fabrics designed for layering, and cuts that feature wrap and split detailing designed to drape and flatter the female form.” A new direction for the staple knitwear brand, which I’m sure to be raiding the Brook Street store for post show!

FTL verdict

For me, London always comes out on top, perhaps I’m biased, perhaps I just think the standard is higher. If NYFW dropped the dead-wood and focused more on emerging innovative talent, rather than Kanye and his entourage I might have a different opinion.

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LFW SS16 kicks off on Friday 18th September leaving its old premises, Somerset House, behind to make a new home at the art-deco Brewer Street Car Park in Soho.

One thing’s for sure, London’s collective of burgeoning talent, both veterans and newcomers, are guaranteed to bring something new and exciting to the trends of Spring/Summer 2016. Let the count-down begin!

NAT-A-PORTER NO MORE!

The shock-resignation of Natalie Massenet from Net-A-Porter, just before the merger with Yoox Group was due to take place, has sent shock-waves through the fashion industry!

Starting out

Massenet’s start-up story is a familiar one. Founding the company in her spare room in 2000, the ultimate Fash Tech entrepreneur saw a gap in the market for an online platform supplying luxury fashion. This led to the birth of Net-A-Porter and forever changed the way we shop online!

Massenet is an American-born former journalist who began working for Women’s Wear Daily and Tatler, which is where her idea of an e-commerce website in a magazine format began. However, the glitz and glamour of the early stage setup was not so high-brow, as Massenet initially stacked the signature Net-A-Porter black packaging in her bath! How times have changed!

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Perhaps Natalie’s bathtub will no longer look so rosy!

In Natalie’s words

So what happened? In her own words this week, Massenet gave us an insight into her decision, saying:

“The completion of Net-a-Porter Group’s merger with Yoox Group is the right time for me to move on to explore new ideas and opportunities…The business I started in 2000 could not be in better shape today. Having joined forces with Yoox Group, the company will be bigger, stronger and superbly well positioned under Federico Marchetti’s leadership to lead the industry and create the future of fashion. As a continuing loyal customer I will be excited to see the next chapter for this amazing business.”

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So long Natalie!

The FTL verdict

Is this really such a surprise? Well, given the fashionista’s position following the merger was to be restricted to an editorial and communications role, perhaps it’s not completely unexpected!

If all had gone to plan, Ms Massenet would have become the executive chairman while Mr Marchetti stepped into the chief executive role. To add fuel to the fire, over lunch with the Financial Times in May this year Mr Marchetti was quick to clarify where the power would lie. There was to be only one boss, he said, “And that’s me”.

Marchetti

In the wise-words of the Godfather of Soul: “Paid the cost to be the Boss!”

Yet to be seen is how the merger between these two rivals will work in practice, in a marketplace that has become increasingly crowded and competitive. For example, is it business-savvy to retain The Outnet, Net-A-Porter’s cut-price site that directly rivalled Yoox? Most definitely not, but which of the two will bite the dust?! There are many questions surrounding what the future holds for Yoox-A-Porter (by the way, I highly doubt this will be the new branding!), but what’s certain is that the new group will have to act decisively to retain shareholder confidence.

Both companies have faced mounting pressure from new businesses entering the luxury e-commerce space, as well as from traditional brands beginning to sell their products online to consumers directly. With big brands reeling from the ongoing economic slowdown in China, and the feeling that the days of rapid expansion are behind them, the mood of the luxury industry, as a whole, is far from sanguine.

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Will the branding change post merger?

Also, despite Ms Massenet’s diplomatic statement, it looks like this was a rather contentious departure: Bloomberg reports that Massenet leaves with over £100 million ($153 million) after the sale of shares in her company. The Financial Times reported that the sum came as a result of a dispute over the value of the Net-A-Porter Group that led to her quitting.

The FTL concludes a trouble at the mill scenario, what other explanation could there be for such a sudden departure?!

Do you know what really caused this turn of events? Do you have an opinion on the matter? If so, we’d love to hear from you via the comments box below!

IN VOQUE?

VOGUE versus VOQUE, “strike a pose VOGUE, VOQUE, VOGUE…”

I know what you’re thinking…it’s only her second week and Fash Tech Lawyer has committed the blogger’s cardinal sin, a typo! Or not…

As I sit here bleary eyed after a looooooong night reviewing a laborious software agreement and sipping a double espresso, I find myself having to double take. Am I going mad? Am I seeing this right? Does that say “VOQUE or VOGUE“?!

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Vintage Vogue from June 1950 (left) and Christmas 1985 (right).

Condé Nast’s opposition

VoQue Limited is a wholesale fashion company with a UK registered office. The company is two years old and reported a 2014 turnover of £10,000.

In September 2013 it applied to register the logo below as a UK trade mark for leather goods; clothing, footwear and headgear. As we know from the Louis Vuitton case (posted here last week), once a trade mark is registered, it will enjoy a presumption of validity until challenged. However, sadly for VoQue it didn’t get that far…

VoQue

No longer “Queen V”!

Hot on VoQue’s heels, the fashion bible VOGUE was not too happy about this and quickly opposed the VOQUE application in December 2013.

Condé Nast, which owns VOGUE, said that the VOQUE mark:

• is confusingly similar to VOGUE, and if registered or even used, would take unfair advantage of VOGUE’s success (if you’re really interested, the relevant law can be found under Section 5(2) (b) and 5(3) of the Trade Marks Act 1994); and
• would cause misrepresentation and damage to the holier than thou publication under Section 5(4)(a) of the Act!

VoQue bites back

In response to this, VoQue said:

• VOQUE and VOGUE carry out totally different activities;
• the typeface used by the VOQUE mark is completely different to the VOGUE mark; and
• VOQUE means “evoke” or “awaken” in French and is different to VOGUE’s “fashionable” or “popular” meaning.

Drum roll please….and it was decided…

No surprises, Condé Nast’s opposition was upheld. Nice try VoQue!!

In July 2015 a decision in favour of the fashionistas’ handbook said:

• the two marks are confusingly alike and have an overall degree of visual, aural and conceptual similarity; and
• VOGUE is distinctive given its reputation and the fact it is not entirely descriptive when used on the iconic publication.

Founded in 1892, Vogue has been at the forefront of fashion publications for well over 100 years! This example is from the 1920s Art Deco era.

Founded in 1892, Vogue has been at the forefront of fashion publications for well over 100 years! This example is from the 1920s Art Deco era.

The application for the VOQUE mark was therefore dismissed and VoQue Limited was ordered to pay the costs incurred by Condé Nast.

The decision also noted:

• the fact that VoQue’s mark has a large crown element around the letter “Q” does not matter, as the average shopper would not see it as sufficiently different;
• the word “Vogue” is a well-known English word meaning “in fashion” and when used in relation to leather goods and clothing, for which the VOQUE mark was registered, alludes to such goods being “of the moment”, which draws parallels between the two marks; and
• the typeface used by VoQue is not unusual, in fact, Condé Nast would be well within their rights to use their VOGUE mark in the same style.

Interestingly, had VoQue managed to slip this one past VOGUE (unlikely!) thereby obtaining registration status, only for VOGUE to then challenge the registered mark at a later date, VOQUE would have been revoked (ironic huh, or just a really bad joke!?)!

Final thought

After reading the case first and foremost, I’m pretty pleased I don’t need my eyes testing, but the lesson to learn from all of this is that it’s risky business basing your branding on a similar, earlier and well established registered mark. There’s only one VOGUE!