INTELLECTUAL PROPERTY RIGHTS IN THE FASHION INDUSTRY: AT WHAT POINT DOES THE INTELLECTUAL PROPERTY OF A DESIGN SHIFT TO A CUSTOMER?
Introduction
The fashion industry is a dynamic and rapidly evolving sector that relies heavily on creativity and innovation. Intellectual property rights play a crucial role in protecting the unique designs and creations of fashion designers. In Nigeria, as in many other countries, various Intellectual Property laws safeguard the rights of fashion designers, artists and creatives with intellectual property.
Few days ago, a customer of a bespoke clothing brand popularly known on Instagram as ‘deolasagoofficial’ by name Hafsah Mohammed with the Instagram handle ‘hafymo’ called the brand out for designing a dress for another customer in the exact same style as hers claiming she paid over $5000 for a custom design and shouldn’t see it on anybody else.
The designer in turn has released a statement saying the brand owns the intellectual Property in her designs, in fact she claims her designs are registered to this effect. There have been various arguments around this and members of the public are wondering what the law says. This article will explore the key Intellectual Property rights relevant to the fashion industry and address the question of when a design becomes exclusively associated with a particular customer.
Key Intellectual Property Rights in the Fashion Industry
Copyright: Copyright protects original works of authorship, including fashion designs. It grants the designer exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the design.
Trademark: Under the Trademarks Act, a mark is deemed registrable if it meets the requirement for distinctiveness under Sections 8 and 9 of the Trademarks Act. Trademarks identify goods or services and distinguish them from those of others. Fashion brands often register their logos, slogans, and distinctive design elements as trademarks to protect their brand identity.
Patents and Design Rights: According to Section 13 of the Patent and Design Act, an industrial design is any unique combination of lines, colors, or shapes that is meant to be used as a guide for creating multiple identical products through industrial processes.
Ownership of Intellectual Property Rights in Fashion
The ownership of intellectual property rights in fashion can be complex, and it’s essential to understand the factors that determine who owns a particular design. Generally, the following principles apply:
Creator Ownership: The designer who creates the original design is typically considered the initial owner of the intellectual property rights. This includes copyright, trademark, and design rights.
Work-for-Hire: If a designer is employed by a company and creates a design as part of their job duties, the company may own the intellectual property rights, depending on the terms of the employment agreement
Commissioned Work: When a designer is commissioned to create a design for a specific client, the ownership of the intellectual property rights can vary depending on the terms of the commission agreement.
Copyright Ownership: While the customer may have exclusive rights to the specific design created for them, the copyright to the underlying elements or concepts used in the design may still belong to the designer. This means that the designer could potentially use similar elements or concepts in future designs.
Shifting of Intellectual Property Rights to the Customer
The point at which the intellectual property of a design shifts from the designer to the customer is a critical consideration. In general, the following factors influence this shift:
Licensing Agreement: A designer may license their design to a manufacturer or retailer, granting them the right to produce and sell products based on the design. In this case, the designer retains ownership of the intellectual property rights while the licensee has a limited right to use the design.
Custom Design: When a designer creates a custom design for a specific customer, the ownership of the intellectual property rights can be negotiated between the designer and the customer. Usually, a contract called Custom Design Agreement is signed.
Custom Design Agreement
A custom design agreement is a legal contract between a designer and a client that outlines the terms and conditions of a custom design project. It typically covers the following key elements: ownership rights, fees and payments, confidentiality, dispute resolution, governing law etc. The agreement may stipulate that the customer acquires ownership of the design or that the designer retains ownership with a limited license to the customer.
In most cases, if a customer pays more than usual for a fashion designer to create a new design, the customer would acquire exclusive rights to that design. This is especially true if the agreement between the designer and the customer explicitly states that the customer will have exclusive ownership of the design.
A well-drafted custom design agreement should clearly outline the ownership rights of the design, including whether the customer has exclusive rights or if the designer retains certain rights.
It’s crucial for both the designer and the customer to have a clear understanding of ownership rights and to document their agreement in writing to avoid any disputes. If you’re unsure about the specific terms of your agreement, it’s advisable to consult with a legal professional.
Conclusion
Understanding intellectual property rights is essential for fashion designers in Nigeria. By protecting their designs, designers can safeguard their creative endeavors and build successful businesses. While a customer may acquire limited rights to a design in certain circumstances, the underlying design generally remains the property of the designer. By carefully considering the ownership of intellectual property rights and the factors that influence their transfer to customers, designers can establish clear boundaries and avoid legal disputes.
