Fashion Police: The low-down on copyright in the New Zealand fashion industry

“Thank you again for a stellar job on our recent copyright claims. It truly was a great result and I’m sure the message has been loud and clear to both their respective product teams!”

Chris Taylor, Managing Director – Moochi

The low-down on copyright infringement in the fashion industry

Alex McDonald, Copyright Infringement Lawyer, Auckland

Fashionista chain, Zara was on the receiving end of a copyright infringement court case last year over copyright infringement allegations brought against it by Nuance Industries, Inc. a New York-based wholesale textile company.

Here’s what New Zealand fashion houses can learn about the treatment of copyright infringement in the New Zealand Courts

The bottom line

It goes without saying that retail chains that copy the designs of other labels spare themselves the design costs incurred by New Zealand fashion houses in producing original designs.

The New Zealand Courts know this with the result that there is now an established line of Australasian fashion related copyright infringement decisions in which the courts have recognised and awarded damages to compensate, not only for lost sales, but also the ‘cheapening’ effect on the designers’ reputation for originality of designs and the loss of ‘exclusivity’ and design ‘freshness’ caused by the sale of knockoff design garments.

This damage to ‘kudos’ approach was most recently recognised in New Zealand in Jeanswest Corp (New Zealand) Ltd v G-Star Raw CV resulting in the Court of Appeal awarding G-Star $50,000 additional damages in a case involving the sale of 374 pairs of jeans.

So for every one of these cases that went to Court there are now cases which can be settled without Court action on terms that see the infringing garment removed from the racks and the New Zealand design house compensated for loss of sales and reputational damage to its copyright.

The ‘starting point’ is the key

Copyright law focuses on where the ‘design’ of a knock-off garment started than not where it ended up.

That stands to reason because in the vast majority of cases retail chains who copy the designs of fashion houses try to cover their tracks while still taking the special things about the design that make it worth copying in the first place. Instead of making an exact copy they make changes to the original design to try to hide the fact that they have copied. Copyright law recognises this. That’s why copyright law puts the onus of proof on the copier to establish an ‘independent design path’ to explain how the design was arrived at.

If the design of a massed produced retail chain garment looks strikingly similar to the design sold by a New Zealand fashion house and the copier can’t show a coherent documented (initial sketches, patterns and samples) design path then the Court will assume that copying has taken place.

The 10% rule is an urban myth

A copy is still a copy if 10% or more of the design is changed. Copyright infringement focuses on quality not quantity; is more concerned with similarities not differences and doesn’t care about percentages.

But what about the lots of other similar styles on the market?

Frequently a clothing store on the receiving end of a copyright infringement claim will point to the fact that there are lots of other similar styles on the market. Usually that’s because the copier can’t show that the infringing garment was independently designed. No amount of similar styles can make up for the absence of an independent design path.

Fashion forensics

Often original garment designs manufactured by New Zealand fashion houses will have design or manufacturing ‘fingerprint’ quirks. For example seams or hems finished in a particular way; panels cut or constructed slightly unusually. When these quirks or ‘fingerprints’ are reproduced in a copy they provide strong proof of copying.

Alex McDonald, fashion copyright infringement legal expert