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IS IMITATION THE NEW STANDARD IN APPAREL INDUSTRY?

Lim, Caselyn Joy, Marasigan, Jerlou Margarette, Santiago, Cecille Edsalaine, Ty, Michelle
Catherine, Uy, Kristine, S14
cjl_joy@yahoo.com, jerlou_marasigan@yahoo.com, ivanamille79@yahoo.com,
tymichelle_michi@yahoo.com, uykris02@yahoo.com

ABSTRACT almost 80 percent of the apparel manufacturers are


consists of custom tailoring and dressmaking and the rest
Fashion is an expression of art. It is not merely a way of of the manufacturers produce ready-made clothes for
dressing up; rather, it is a form of masterpiece which is a exports and these business firms contribute 51 percent of
product of the creators’ skills or ideas. Thus, there is a the total exports in the industry. [5]
call to protect this form of artistry in the apparel industry,
especially in the Philippines. Imitation of apparel could be United States can be considered as the major
seen in various parts of the country, having the same export market for apparel industry and others also include
logos, trademarks, or designs. The freedom that it gets to Germany, Japan, and United Kingdom. Traditionally, our
copy the apparel, affects the growth and development, country’s garments manufacturers focused only on
even the people of the industry. Furthermore, the producing discount apparel, but as the industry continues
unprotected state in this side of artistry makes a higher to develop, they also cater to the branded wearing apparel
threat of piracy or illegal copying. Other countries have for export. [5] With this, it can be said that the fashion
already implemented their own action to this issue by industry can be considered as a global phenomenon
imposing copyright in the apparel industry. This serves as contributing to one’s economy.
a guide for the Philippines on how to solve this issue.
Fashion is unpredictable for it is dynamic. What
may be considered trendy today might change in the near
2. INTRODUCTION future. [8] Because of this, fashion industry is a good
example of industry that is never going to fade. [7] Those
Fashion is closely related to anything an individual wears people who are engaged to this kind of industry always
and in general term, it can be associated to beauty, keep on inventing new designs, patterns. And these
glamour and style. These may include clothes, shoes, designs that will be created and introduced in the market
jewelries and other accessories. Yet, in general, fashion is are usually followed by the masses. Through fashion
a term usually used to relate to clothing style mostly worn magazines, people are able to stay updated with regards to
by the majority. Clothing style is a fashion, and as it what’s ‘in’ and ‘out’ of fashion.
becomes more popular to the people, it is then being
referred to as a fad or trend. [10] These trends normally Today, developments in fashion technology
remain popular for a specific period of time and as time continue to expand to be able to provide more variety of
goes by, these are being replaced by another fashion that product lines. Manufacturers are now investing into new
will again hit the market. Fashion has grown to be part of and more advanced technologies to help their businesses
our daily life and this is what people are looking forward improve processes and satisfy their customers with
to particularly to those who belong to the youth, elite quality and unique products. One of the most important
class and ‘fashionistas.’ As fashion evolves, other large- developments today is the emergence of “smart fabrics”
scale industries are also being developed such as those that may help in enhancing the qualities and
which are into fashion magazines and fashion shows. [7] characteristics of clothing. Moreover, research and
development had found out that fabrics can also be
Way back mid -1800's, fashionable clothing manufactured to provide power generation using solar
were still available to more people for a lower price for power, electromagnetic means. In addition to this
the fact that there is mass production, which brought forth research, more companies are now taking into
to encouraging more people to wear more stylish clothes. consideration the integration of Information Technology
[11]
In 1970s, as the Philippine garment industry began to into fabrics for certain purposes. Other developments also
export products, the country was able to experience rapid led to outsourcing to be able to adapt to globalization and
growth in the said industry. Unfortunately, during 1990s, there are also some fashion companies who are into
fashion industry’s growth gradually slowed down. Before, online market and sell digital fashions. [9]
Another reason would be that it is believe that
With all of this advancement in technologies, we the apparels designs are feared to create monopoly in the
can not deny the fact that issues with regards to the apparel industry. If ever this has to be granted to apparel
imitation of products or copyright problems will really designers, then there would be exclusivity for the
exist. In this modern age, fashion industry has been facing designers to control their designs through permissive use
several problems concerning copyright issues. For and arranged licenses. Because of this notion, the
instance, the works of the famous fashion designers are copyright protection was not favored to be approved, but
being imitated and are made available in the market even the disadvantage of this move was that the apparel
before the originals reach the market. Hence, it is not even designs were prone to copying. The carbon copies created
clear which designer created the design and which based from designers are, most of the time, copied exactly
designer copied it. [4] Because of this, the original without the permission of the designer. They may look
designers complain that because of these imitations, it exactly the same but the quality used is lower compared
lowers their sales and also removes incentives for their to how it was originally designed. Another supportive
creativity. reason to this is that the denial of copyright protection
would be one way of promoting social equality since
Each fashion designer just like other inventor or people coming from a lower bracket of society have
creator deserves credit for his/her creation and effort. access to the designs that were targeted to the affluent
Thus, designers are now facing this issue of copyright / customers.
imitation of their works and they are starting to propose
the imposition of the Copyright Act to protect their Anyone’s work is entitled to be protected and
fashion works. [6] credited whenever others would be using the idea that the
designers just had. Copying of ideas has been a serious
issue in any field today and the apparels industry is not
3. LITERATURE REFERENCES exempted from it. A major obstacle encountered by some
designers would be their designs, marked as fashion-label
We cannot deny that fashion would be considered to be as originals, would be imitated and these imitations would
part of every person’s need to blend in society. It can be eventually reach stores before the original designs are
noticed that whenever new fashion trends would come out even released in the market. A question commonly raised
during a given period of time, people cannot help but go in this would be, do designers have the right to protect
with the flow by following the styles of clothes dictated to their ideas? One would notice that fashion designers
them. Fashion designers need to come up with fresh, new, would tend to have something common in their designs,
creative and innovative styles that will certainly catch the depending on the season their collections would be
attention of its people and most importantly, a kind of released. Also, fashion trends tend to change constantly
style that would set as the new wave in the fashion and some even believe that the designs are recycled, for
industry. With this, clothing designs will have to vary the designs tend of come back after 20 years or so.
from one designer to another.
In the United States, there are three (3) forms of
A creation of a certain design will have to entail protection, but it does not guarantee that the apparel
that a design is “owned” by one particular designer. Some designs are protected wholly. There forms would be:
apparel designs are considered to be haute couture, which copyright, trademark and patent. Designs may have
is considered to be “wearable art” compared to the different boundaries and protection under each system.
ordinary wearable apparel. This will be the time when
copyright protection has to be imposed in the apparel 3.1 Copyright
industry as well. However, sad to say, that kind of
protection is not granted on apparel designs due to some Copyright would be defined as the legal right of creative
reasons. One reason would be due to the fact that it is artists to control the use and reproduction of their original
perceived that apparel designs are useable articles without works. It protects certain “original works of authorship
any copyrightable elements. A useable article is defined fixed in any tangible medium of expression” [3]. The
as “an article having an intrinsic utilitarian function that is copyright act lists works such as “pictorial, graphic and
not merely to portray the appearance of the article or to sculptural works” as art that is covered by this copyright
convey information” [2]. The protection provided, if there law. Fashion designs can then be categorized as “visual
is any, would be considered to be limited in a sense that art” which can be considered as copyrightable work.
the protection is limited to the aesthetic features of the However, copyright protection granted to visual art has a
work. It can go to the extent wherein the features can be significant limitation. As mentioned earlier, apparel
separated from the work’s utilitarian function [2]. designs are considered to be useful articles, which means
that the protection imposed can only be limited to the
aesthetic features of the work. The fashion sketch can be infringement against people who “reverse-engineer” their
copyrightable, but the highly original garment depicted is garments. This just means that they cannot totally sue a
not [2]. person who intently copied their pattern and then
customized the designs in order to come up with their
Copyright does not protect ideas or concepts. own pattern.
Nor does copyright protect styles, techniques or methods
used in producing clothing. Rather, copyright protects The last two includes the designs that are printed
particular items, which may be produced using such styles on fabrics such as a photograph printed on a t-shirt and
or techniques. For example, the idea of making a dress the other is the written instructions that defines and
with only one sleeve would not be protected by copyright, explains the different ways on how to assemble a
but a particular dress with this feature may be protected as garment. When it comes to the designs printed on the
a work of artistic craftsmanship. A particular style of fabrics, they are being protected by copyright since they
clothing such as peasant-inspired clothing would not be are considered to be artistic works. On the other hand,
protected by copyright, although a particular item of written instructions fall under literary works which means
clothing in that style may be. that wanting to reproduce the written instructions would
generally need permission. [1]
For a work to be protected copyright, it must fall Once a designer or a company gained its
under the four different areas listed above. copyright from its products, he is entitled to his rights as
the owner. His first right is to reproduce the work. Since it
The first to consider are the individual garments. is his own idea, he has the right to share his idea to the
This means that Items of clothing that are individually public by reproducing it. No matter how many times he
created are likely to be works of artistic craftsmanship, reproduces his work, he wouldn’t worry. In relation to
and therefore protected by copyright. Individually made that, he also has this right to first publicize his work to the
pieces of jewellery, hats, handbags and shoes may also be people. Communicate the work to the public for example,
works of artistic craftsmanship. For such an item to be by broadcasting the work, emailing a digital file
protected by copyright it must be the product of an containing the work or by making it available online on
element of craftsmanship and be intended by its creator to the internet or intranet. This just means that if a person is
have some aesthetic appeal. There is no exhaustive list of not the copyright owner of a certain kind of work and he
what may be protected as a work of artistic craftsmanship: wants to do these things, he needs to first ask permission
this issue will depend upon the facts of an individual case. from the copyright owner itself in order to be entitled in
[1]
doing these rights.

However, a prototype which is only intended for The Designs Act provides protection for designs
use during an intermediate stage in the design process from which multiple copies are made. Registration is
may not be a work of artistic craftsmanship in its own generally necessary for protection under the Designs Act.
right. Similarly, you should not presume that an item of In many cases, items that could be registered as designs
clothing is always a work of artistic craftsmanship: there would also come into one of the categories of things that
have been cases where courts have held that garments are protected by copyright. For many years, successive
lacked the necessary qualities, with the result that the governments have had a policy of limiting copyright
designer could not rely on copyright protection. Even if a protection for artistic works related to functional articles.
garment is theoretically protected by copyright, copying it The idea is that when it comes to the appearance and
may not result in copyright infringement. [1] shape of functional items, the Designs Act is the more
After which, the next to consider are the patterns appropriate form of legal protection, and people wanting
that are used to create the clothing itself. Generally, a to protect functional or mass-produced items should
pattern for a garment or other fashion item (for example, register their designs. [1]
on paper or cardboard) is likely to be protected by
copyright as an artistic work. However, the scope of this To give effect to this policy, successive
protection is limited. Prior to 17 June 2004, the owner of governments have included provisions in the Copyright
copyright in a pattern for mass-produced clothes could Act limiting the scope of copyright protection for items
take action for infringement if someone copied the pattern that could be protected as designs. These provisions are
without permission for example, by taking a garment generally referred
apart to copy it, or copying commercial clothes patterns. to as “the design/copyright overlap provisions” and, while
However, there are some changes that are made with the the policy behind them has remained the same, these
law. As a result of changes to the law that came into provisions have changed over time.
effect on June 17, 2004, the owner of copyright in a
pattern now cannot generally take action for copyright
As noted earlier, new legislation affecting the against companies that marketed second-hand customised
overlap provisions came into effect on June 17 2004, garments with the original labels. It is also possible that a
intended to close “loop-holes” that emerged in previous creator or copyright owner could make claims concerning
legislation. In summary: moral rights or copyright in these circumstances. If you
intend to sell customised garments commercially, you
• It is intended that purely two-dimensional should get advice from a lawyer as to whether this might
designs (such as drawings to be put onto T- breach trade practices or other laws. [1]
shirts) retain the ability to have dual copyright
and design law protection; Given the copyright, patent and trademark, there
• People creating works of artistic craftsmanship is still no assurance that a work is fully protected. That’s
can choose whether or not to register the design why it is important to consider certain things in order to
(but registering will generally result in a loss of have a protection in terms of your ideas and concepts. If a
copyright); and creator discloses information about a design on a
• Manufacturers of functional items that confidential basis, for example to a clothing
otherwise would be excluded from copyright manufacturer, and that information is used, the creator
protection can no longer rely on plan-to-plan may have a claim for breach of confidence. This area of
copying or “advertising use” to establish a the law may protect an idea or concept before it has been
copyright claim. [2] released to the public. To establish a breach of confidence
the creator will need to prove that the information is of a
3.2 Patent confidential nature, was disclosed when an obligation of
confidence was accepted or implicit, and that there was an
Patent laws can protect designers a limited monopoly over unauthorised use or threat to use the information. If you
their “discoveries” on how they have thought of enter an agreement with a manufacturer to make clothes
manufacturing their product [2]. They also have an you have designed, you should seek advice from a lawyer
exclusive right in the use and sell of their inventions. The in private practice on the terms and conditions that should
two (2) kinds of patent would be: Utility Patent which be included in the agreement, including clauses that
lasts for 20 years and the other is Design Patent which last prevent the manufacturer from using your ideas in ways
for about 14 years. Apparel designers can take advantage that could damage your interests.
of utility patent in such a way that they can protect
functional features, such as garment materials, fabric
finishing methods and garment dyeing process and other 4. CONCLUSION
underlying technology of various designs [2]. But this kind
of protection cannot protect the apparel’s overall outward In general, this paper aims to highlight and proposes the
design. This would then entail the design patent’s turn to idea of granting copyright protection for fashion designs.
protect the appearance of the design. Fashion design can also be considered as a creative art or
expression, of a designer that displays same qualities as
3.3 Trademark other protected subjects. Thus, it must be treated the same
way as other copyright items. More so today, the fashion
Trademarks protect “any word, name, symbol or device or apparel has grown to be a multi-dollar industry that has no
any combination thereof” that is used to identify a definite boundaries. The fashion industry has already been
particular good or service [2]. This kind of protection is covered by magazines, newspapers, television series, and
different from a copyright or a patent since it does not other media, which by effect has greatly become part of
have indefinite time for protecting the good or the service, each individual’s way of living. Consumers these days are
as long as the mark or design is being used in commerce. more conscious of what they actually wear.
In applying for a trademark protection, the designer has to
prove that the mark is considered to be distinctive and the Based on the group’s perception, it is actually
mark is able to identify that it belongs to a specific kind of unfair that fashion designers are unable to protect their
good or service. creative expression. In comparison, an inventor who was
granted full protection of his invention can directly enjoy
If you are altering or customising a garment for the advantages of having a copyright when the invention
your own use, it is unlikely that any legal issues will arise. becomes popular to the people, he gets a high percentage
However, if you intend to market garments you have to the overall earnings. While on the other hand, when a
purchased and customised, you should be aware that this designer’s fashion design becomes a trend, many of the
could raise legal issues under areas of law such as trade businesses involved in the apparel industry gains from it,
practices. There have been cases in which clothing not only the designer or the company who first came up
manufacturers have taken action under trade practices law
with the design. Designers are not given the same
recognition, and moral right to his creation. 5. REFERENCES
[1]
In every act there are always advantages and Australian Copyright Council. (2005). Fashion Design
disadvantages. As previously mentioned, by not granting and Costumes. Retrieved March 12, 2009 from
copyright protection advantages include eliminating www.copyright.org.au/pdf/
monopoly in the apparel market, and making the acc/infosheets_pdf/G076.pdf
designers’ work of art widely available to consumers in
[2]
different social classes. However, as a matter a fact as IP protection for fashion design. (2007).
seen in other countries that extended their copyright to CopyrightWorld. Retrieved March 12, 2009
garments design such monopoly did not exist [3]. For the from http://www.kilpatrickstockton.
disadvantages, by not granting copyright protection, this com/publications/downloads/LPearsonApr07.p
greatly encourages piracy and widespread of product df
imitation. Though there are existing areas of law that
[3]
might protect garment design creation such as design Mencken, J. (1997). A Design for the Copyright of
patents, trademark and unfair competition, and trade Fashion. Retrieved March 12, 2009 from http://
restriction, they have been proven to be still ineffective www.bc.edu/bc_org/avp/law/st_org/iptf/articles
and insufficient to stopping piracy. /content/1997121201.html
[4]
In this case, copyright protection should not Copyright for Fashion? The Discussion. (2006).
dwell on public interest or desires, but rather focus on Articlesbase. Retrieved March 12, 2009 from
considering the work of the designers and their economic http://www.articlesbase.com/copyright-
interest. Denial of proper protection only encourages articles/copyright-for-fashion-the-discussion-
piracy, and not creation. Basically, if a garments design 73330.html
copyright is granted along with a short and inexpensive
application process -since fashion and time go hand in [5]
Cotton Textile and Apparel Products in Philippines.
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benefits the creator and the public welfare [3]. from http://www.fas.usda.gov/mos/em-
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To have a more comprehensive overview on
copyright protection for fashion designs, it is suggested to [6]
Fashion. (n.d.). Fashion.InfoSite. Retrieved March 12,
look on different copyright protection versions granted by 2009 from
different countries. An example would be Australia, who http://www.fashioninfosite.net/contact_us.html.
granted copyright protection for clothes, accessories, and [7]
Fashion design – A perfect blend of colors and
patterns. In Australia, such copyright is only applicable creativity. (n.d.). Fashion Café. Retrieved March
for “artistic works”, a product of craftsmanship, and be 12, 2009 from http://www.fashion-
intended by its creator to have some aesthetic appeal. cafe.net/2008/12/17/fashion-design-
However, granting of copyright will still depend upon the %e2%80%93-a-perfect-blend-of-colors-and-
facts of an individual case [1]. creativity/#more-16774
[8]
Fashion industry – the birthplace of fashion. (n.d.).
Furthermore, though this paper mainly tackles Fashion Café. Retrieved March 12, 2009 from
the copyright issues on fashion designs, there are still a lot http://www.fashion-cafe.net/2008/12/11/fashion-
more issues that can be explored in the fashion industry industry-%e2%80%93-the-birthplace-of-fashion/
such would include environmental, and social. For #more-16762
environmental issues, air pollution can be tackled since
some apparel factories contribute to environmental [9]
Fashion Technology. (2006). Global Foresight, Inc.
destruction. For social issues, clothing designed to Retrieved March 12, 2009 from
express social status and ideal body image or shape can www.doe.mass.edu/cte/frameworks/trends_ov/fa
also be tackled. As of today, not only does fashion affects shion.pdf
the physical body of an individual, but also it affects some
of the individual’s psychological perception on certain [10]
What is Fashion? (n.d.). Fashion Forever. Retrieved
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which contributes to an increase of individuals %20Fashion.html
experiencing eating disorder to fit on what fashion seem
to dictate.