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
Fashion is an expression of art. It is not merely a way of
dressing up; rather, it is a form of masterpiece which is a
product of the creators’ skills or ideas. Thus, there is a
call to protect this form of artistry in the apparel industry,
especially in the Philippines. Imitation of apparel could be
seen in various parts of the country, having the same
logos, trademarks, or designs. The freedom that it gets to
copy the apparel, affects the growth and development,
even the people of the industry. Furthermore, the
unprotected state in this side of artistry makes a higher
threat of piracy or illegal copying. Other countries have
already implemented their own action to this issue by
imposing copyright in the apparel industry. This serves as
a guide for the Philippines on how to solve this issue.
2. INTRODUCTION
Fashion is closely related to anything an individual wears
and in general term, it can be associated to beauty,
glamour and style. These may include clothes, shoes,
jewelries and other accessories. Yet, in general, fashion is
a term usually used to relate to clothing style mostly worn
by the majority. Clothing style is a fashion, and as it
becomes more popular to the people, it is then being
referred to as a fad or trend. [10] These trends normally
remain popular for a specific period of time and as time
goes by, these are being replaced by another fashion that
will again hit the market. Fashion has grown to be part of
our daily life and this is what people are looking forward
to particularly to those who belong to the youth, elite
class and ‘fashionistas.’ As fashion evolves, other large-
scale industries are also being developed such as those
which are into fashion magazines and fashion shows. [7]
Way back mid -1800's, fashionable clothing
were still available to more people for a lower price for
the fact that there is mass production, which brought forth
to encouraging more people to wear more stylish clothes.
[11]
In 1970s, as the Philippine garment industry began to
export products, the country was able to experience rapid
growth in the said industry. Unfortunately, during 1990s,
fashion industry’s growth gradually slowed down. Before,
almost 80 percent of the apparel manufacturers are
consists of custom tailoring and dressmaking and the rest
of the manufacturers produce ready-made clothes for
exports and these business firms contribute 51 percent of
the total exports in the industry. [5]
United States can be considered as the major
export market for apparel industry and others also include
Germany, Japan, and United Kingdom. Traditionally, our
country’s garments manufacturers focused only on
producing discount apparel, but as the industry continues
to develop, they also cater to the branded wearing apparel
for export. [5] With this, it can be said that the fashion
industry can be considered as a global phenomenon
contributing to one’s economy.
Fashion is unpredictable for it is dynamic. What
may be considered trendy today might change in the near
future. [8] Because of this, fashion industry is a good
example of industry that is never going to fade. [7] Those
people who are engaged to this kind of industry always
keep on inventing new designs, patterns. And these
designs that will be created and introduced in the market
are usually followed by the masses. Through fashion
magazines, people are able to stay updated with regards to
what’s ‘in’ and ‘out’ of fashion.
Today, developments in fashion technology
continue to expand to be able to provide more variety of
product lines. Manufacturers are now investing into new
and more advanced technologies to help their businesses
improve processes and satisfy their customers with
quality and unique products. One of the most important
developments today is the emergence of “smart fabrics”
that may help in enhancing the qualities and
characteristics of clothing. Moreover, research and
development had found out that fabrics can also be
manufactured to provide power generation using solar
power, electromagnetic means. In addition to this
research, more companies are now taking into
consideration the integration of Information Technology
into fabrics for certain purposes. Other developments also
led to outsourcing to be able to adapt to globalization and
there are also some fashion companies who are into
online market and sell digital fashions. [9]

With all of this advancement in technologies, we
can not deny the fact that issues with regards to the
imitation of products or copyright problems will really
exist. In this modern age, fashion industry has been facing
several problems concerning copyright issues. For
instance, the works of the famous fashion designers are
being imitated and are made available in the market even
before the originals reach the market. Hence, it is not even
clear which designer created the design and which
designer copied it. [4] Because of this, the original
designers complain that because of these imitations, it
lowers their sales and also removes incentives for their
creativity.
Each fashion designer just like other inventor or
creator deserves credit for his/her creation and effort.
Thus, designers are now facing this issue of copyright /
imitation of their works and they are starting to propose
the imposition of the Copyright Act to protect their
fashion works. [6]
3. LITERATURE REFERENCES
We cannot deny that fashion would be considered to be as
part of every person’s need to blend in society. It can be
noticed that whenever new fashion trends would come out
during a given period of time, people cannot help but go
with the flow by following the styles of clothes dictated to
them. Fashion designers need to come up with fresh, new,
creative and innovative styles that will certainly catch the
attention of its people and most importantly, a kind of
style that would set as the new wave in the fashion
industry. With this, clothing designs will have to vary
from one designer to another.
A creation of a certain design will have to entail
that a design is “owned” by one particular designer. Some
apparel designs are considered to be haute couture, which
is considered to be “wearable art” compared to the
ordinary wearable apparel. This will be the time when
copyright protection has to be imposed in the apparel
industry as well. However, sad to say, that kind of
protection is not granted on apparel designs due to some
reasons. One reason would be due to the fact that it is
perceived that apparel designs are useable articles without
any copyrightable elements. A useable article is defined
as “an article having an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to
convey information” [2]. The protection provided, if there
is any, would be considered to be limited in a sense that
the protection is limited to the aesthetic features of the
work. It can go to the extent wherein the features can be
separated from the work’s utilitarian function [2].
Another reason would be that it is believe that
the apparels designs are feared to create monopoly in the
apparel industry. If ever this has to be granted to apparel
designers, then there would be exclusivity for the
designers to control their designs through permissive use
and arranged licenses. Because of this notion, the
copyright protection was not favored to be approved, but
the disadvantage of this move was that the apparel
designs were prone to copying. The carbon copies created
based from designers are, most of the time, copied exactly
without the permission of the designer. They may look
exactly the same but the quality used is lower compared
to how it was originally designed. Another supportive
reason to this is that the denial of copyright protection
would be one way of promoting social equality since
people coming from a lower bracket of society have
access to the designs that were targeted to the affluent
customers.
Anyone’s work is entitled to be protected and
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
exempted from it. A major obstacle encountered by some
designers would be their designs, marked as fashion-label
originals, would be imitated and these imitations would
eventually reach stores before the original designs are
even released in the market. A question commonly raised
in this would be, do designers have the right to protect
their ideas? One would notice that fashion designers
would tend to have something common in their designs,
depending on the season their collections would be
released. Also, fashion trends tend to change constantly
and some even believe that the designs are recycled, for
the designs tend of come back after 20 years or so.
In the United States, there are three (3) forms of
protection, but it does not guarantee that the apparel
designs are protected wholly. There forms would be:
copyright, trademark and patent. Designs may have
different boundaries and protection under each system.
3.1 Copyright
Copyright would be defined as the legal right of creative
artists to control the use and reproduction of their original
works. It protects certain “original works of authorship
fixed in any tangible medium of expression” [3]. The
copyright act lists works such as “pictorial, graphic and
sculptural works” as art that is covered by this copyright
law. Fashion designs can then be categorized as “visual
art” which can be considered as copyrightable work.
However, copyright protection granted to visual art has a
significant limitation. As mentioned earlier, apparel
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
copyrightable, but the highly original garment depicted is
not [2].
Copyright does not protect ideas or concepts.
Nor does copyright protect styles, techniques or methods
used in producing clothing. Rather, copyright protects
particular items, which may be produced using such styles
or techniques. For example, the idea of making a dress
with only one sleeve would not be protected by copyright,
but a particular dress with this feature may be protected as
a work of artistic craftsmanship. A particular style of
clothing such as peasant-inspired clothing would not be
protected by copyright, although a particular item of
clothing in that style may be.
For a work to be protected copyright, it must fall
under the four different areas listed above.
The first to consider are the individual garments.
This means that Items of clothing that are individually
created are likely to be works of artistic craftsmanship,
and therefore protected by copyright. Individually made
pieces of jewellery, hats, handbags and shoes may also be
works of artistic craftsmanship. For such an item to be
protected by copyright it must be the product of an
element of craftsmanship and be intended by its creator to
have some aesthetic appeal. There is no exhaustive list of
what may be protected as a work of artistic craftsmanship:
this issue will depend upon the facts of an individual case.
[1]
However, a prototype which is only intended for
use during an intermediate stage in the design process
may not be a work of artistic craftsmanship in its own
right. Similarly, you should not presume that an item of
clothing is always a work of artistic craftsmanship: there
have been cases where courts have held that garments
lacked the necessary qualities, with the result that the
designer could not rely on copyright protection. Even if a
garment is theoretically protected by copyright, copying it
may not result in copyright infringement. [1]
After which, the next to consider are the patterns
that are used to create the clothing itself. Generally, a
pattern for a garment or other fashion item (for example,
on paper or cardboard) is likely to be protected by
copyright as an artistic work. However, the scope of this
protection is limited. Prior to 17 June 2004, the owner of
copyright in a pattern for mass-produced clothes could
take action for infringement if someone copied the pattern
without permission for example, by taking a garment
apart to copy it, or copying commercial clothes patterns.
However, there are some changes that are made with the
law. As a result of changes to the law that came into
effect on June 17, 2004, the owner of copyright in a
pattern now cannot generally take action for copyright
infringement against people who “reverse-engineer” their
garments. This just means that they cannot totally sue a
person who intently copied their pattern and then
customized the designs in order to come up with their
own pattern.
The last two includes the designs that are printed
on fabrics such as a photograph printed on a t-shirt and
the other is the written instructions that defines and
explains the different ways on how to assemble a
garment. When it comes to the designs printed on the
fabrics, they are being protected by copyright since they
are considered to be artistic works. On the other hand,
written instructions fall under literary works which means
that wanting to reproduce the written instructions would
generally need permission. [1]
Once a designer or a company gained its
copyright from its products, he is entitled to his rights as
the owner. His first right is to reproduce the work. Since it
is his own idea, he has the right to share his idea to the
public by reproducing it. No matter how many times he
reproduces his work, he wouldn’t worry. In relation to
that, he also has this right to first publicize his work to the
people. Communicate the work to the public for example,
by broadcasting the work, emailing a digital file
containing the work or by making it available online on
the internet or intranet. This just means that if a person is
not the copyright owner of a certain kind of work and he
wants to do these things, he needs to first ask permission
from the copyright owner itself in order to be entitled in
doing these rights.
The Designs Act provides protection for designs
from which multiple copies are made. Registration is
generally necessary for protection under the Designs Act.
In many cases, items that could be registered as designs
would also come into one of the categories of things that
are protected by copyright. For many years, successive
governments have had a policy of limiting copyright
protection for artistic works related to functional articles.
The idea is that when it comes to the appearance and
shape of functional items, the Designs Act is the more
appropriate form of legal protection, and people wanting
to protect functional or mass-produced items should
register their designs. [1]
To give effect to this policy, successive
governments have included provisions in the Copyright
Act limiting the scope of copyright protection for items
that could be protected as designs. These provisions are
generally referred
to as “the design/copyright overlap provisions” and, while
the policy behind them has remained the same, these
provisions have changed over time.
 As noted earlier, new legislation affecting the
overlap provisions came into effect on June 17 2004,
intended to close “loop-holes” that emerged in previous
legislation. In summary:
• It is intended that purely two-dimensional
designs (such as drawings to be put onto T-
shirts) retain the ability to have dual copyright
and design law protection;
• People creating works of artistic craftsmanship
can choose whether or not to register the design
(but registering will generally result in a loss of
copyright); and
• Manufacturers of functional items that
otherwise would be excluded from copyright
protection can no longer rely on plan-to-plan
copying or “advertising use” to establish a
copyright claim. [2]
3.2 Patent
Patent laws can protect designers a limited monopoly over
their “discoveries” on how they have thought of
manufacturing their product [2]. They also have an
exclusive right in the use and sell of their inventions. The
two (2) kinds of patent would be: Utility Patent which
lasts for 20 years and the other is Design Patent which last
for about 14 years. Apparel designers can take advantage
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
underlying technology of various designs [2]. But this kind
of protection cannot protect the apparel’s overall outward
design. This would then entail the design patent’s turn to
protect the appearance of the design.
3.3 Trademark
Trademarks protect “any word, name, symbol or device or
any combination thereof” that is used to identify a
particular good or service [2]. This kind of protection is
different from a copyright or a patent since it does not
have indefinite time for protecting the good or the service,
as long as the mark or design is being used in commerce.
In applying for a trademark protection, the designer has to
prove that the mark is considered to be distinctive and the
mark is able to identify that it belongs to a specific kind of
good or service.
If you are altering or customising a garment for
your own use, it is unlikely that any legal issues will arise.
However, if you intend to market garments you have
purchased and customised, you should be aware that this
could raise legal issues under areas of law such as trade
practices. There have been cases in which clothing
manufacturers have taken action under trade practices law
against companies that marketed second-hand customised
garments with the original labels. It is also possible that a
creator or copyright owner could make claims concerning
moral rights or copyright in these circumstances. If you
intend to sell customised garments commercially, you
should get advice from a lawyer as to whether this might
breach trade practices or other laws. [1]
Given the copyright, patent and trademark, there
is still no assurance that a work is fully protected. That’s
why it is important to consider certain things in order to
have a protection in terms of your ideas and concepts. If a
creator discloses information about a design on a
confidential basis, for example to a clothing
manufacturer, and that information is used, the creator
may have a claim for breach of confidence. This area of
the law may protect an idea or concept before it has been
released to the public. To establish a breach of confidence
the creator will need to prove that the information is of a
confidential nature, was disclosed when an obligation of
confidence was accepted or implicit, and that there was an
unauthorised use or threat to use the information. If you
enter an agreement with a manufacturer to make clothes
you have designed, you should seek advice from a lawyer
in private practice on the terms and conditions that should
be included in the agreement, including clauses that
prevent the manufacturer from using your ideas in ways
that could damage your interests.
4. CONCLUSION
In general, this paper aims to highlight and proposes the
idea of granting copyright protection for fashion designs.
Fashion design can also be considered as a creative art or
expression, of a designer that displays same qualities as
other protected subjects. Thus, it must be treated the same
way as other copyright items. More so today, the fashion
apparel has grown to be a multi-dollar industry that has no
definite boundaries. The fashion industry has already been
covered by magazines, newspapers, television series, and
other media, which by effect has greatly become part of
each individual’s way of living. Consumers these days are
more conscious of what they actually wear.
Based on the group’s perception, it is actually
unfair that fashion designers are unable to protect their
creative expression. In comparison, an inventor who was
granted full protection of his invention can directly enjoy
the advantages of having a copyright when the invention
becomes popular to the people, he gets a high percentage
to the overall earnings. While on the other hand, when a
designer’s fashion design becomes a trend, many of the
businesses involved in the apparel industry gains from it,
not only the designer or the company who first came up
with the design. Designers are not given the same
recognition, and moral right to his creation.
In every act there are always advantages and
disadvantages. As previously mentioned, by not granting
copyright protection advantages include eliminating
monopoly in the apparel market, and making the
designers’ work of art widely available to consumers in
different social classes. However, as a matter a fact as
seen in other countries that extended their copyright to
garments design such monopoly did not exist [3]. For the
disadvantages, by not granting copyright protection, this
greatly encourages piracy and widespread of product
imitation. Though there are existing areas of law that
might protect garment design creation such as design
patents, trademark and unfair competition, and trade
restriction, they have been proven to be still ineffective
and insufficient to stopping piracy.
In this case, copyright protection should not
dwell on public interest or desires, but rather focus on
considering the work of the designers and their economic
interest. Denial of proper protection only encourages
piracy, and not creation. Basically, if a garments design
copyright is granted along with a short and inexpensive
application process -since fashion and time go hand in
hand, it only punishes the pirate, and on the other hand
benefits the creator and the public welfare [3].
To have a more comprehensive overview on
copyright protection for fashion designs, it is suggested to
look on different copyright protection versions granted by
different countries. An example would be Australia, who
granted copyright protection for clothes, accessories, and
patterns. In Australia, such copyright is only applicable
for “artistic works”, a product of craftsmanship, and be
intended by its creator to have some aesthetic appeal.
However, granting of copyright will still depend upon the
facts of an individual case [1].
Furthermore, though this paper mainly tackles
the copyright issues on fashion designs, there are still a lot
more issues that can be explored in the fashion industry
such would include environmental, and social. For
environmental issues, air pollution can be tackled since
some apparel factories contribute to environmental
destruction. For social issues, clothing designed to
express social status and ideal body image or shape can
also be tackled. As of today, not only does fashion affects
the physical body of an individual, but also it affects some
of the individual’s psychological perception on certain
matters. Moreover, some study suspects that fashion has
greatly affect some of the individuals’ way of living
which contributes to an increase of individuals
experiencing eating disorder to fit on what fashion seem
to dictate.
5. REFERENCES
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[2]
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[3]
Mencken, J. (1997). A Design for the Copyright of
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[4]
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[5]
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