Can fashion be copyrighted as art? You might think of music or pictures. But you can, and we explain how.
Most people are more familiar with a copyright in a linguistic work or a cinematographic work. However, fashion products can also obtain copyright protection as works of so-called applied art if they represent a personal intellectual creation.
For this to happen, the fashion product must reach a level of design in terms of cut, fabric pattern and choice of colour that, in the opinion of circles receptive to art and somewhat familiar with art appreciation, justifies speaking of an “artistic” achievement.
Works of applied art
Jurisprudence originally had very high requirements for the level of design and demanded that the fashion productclearly surpass the average design. In the case of fashion creations, the mere further development of the fashionable line and form or its combination with what was already known was not sufficient. Rather, the fashion product had to have been characterised by the individual spirit of the creator and high-quality materials had to have been combined in a style of its own. All in all, the fashion product created had to be unprecedented and thus stand out from the mass of the everyday. Based on these strict requirements, copyright protection of fashion products could only be considered for tailor-made haute couture models or for very unusual, novel and unusual designs. Otherwise, copyright protection was rejected by the majority of the case law.
The Federal Court of Justice later lowered these high requirements in an important decision (BGH, judgement of 13 November 2013 – I ZR 143/12, – Geburtstagszug). Since then, the fashion creation no longer has to clearly surpass the average design.
Rather, it is already sufficient if the shape of the work is neither predetermined nor technically conditioned. The fashion product must show more than just a mastery of tailoring and general forms. The form and aesthetic design must therefore not only be due to the practical purpose of the fashion product, but must be based on a free and creative artistic achievement. Under these simplified conditions, ready-to-wear models produced in large numbers can also obtain copyright protection.
The point in time at which the fashion product was created is also decisive. If a formerly groundbreaking product design later becomes a generally followed style, this does not exclude the protectability of the product created for the first time.
The example of Dr. Martens
For example, the now classic Dr. Martens 1460 shoe model from the 1960s is protected by copyright as a work of applied art. It is doubtful whether the shoes would have achieved the required level of design under the strict old case law. At any rate, according to the new BGH case law, there is a personal intellectual creation and sufficient design height.
The creation of the Dr. Martens 1460 was precisely not determined by technical considerations, by rules or by other constraints. Beyond the purely utilitarian purpose of the Dr. Martens 1460 shoe model, there was sufficient scope for the creator Bill Griggs to make free, creative decisions, which he filled in an individual way, thus reflecting his personality. This follows from the typical and characteristic design features that have remained unchanged since the first production on 01.04.1960.
Thus, the look chosen by Bill Griggs stands out unmistakably. The ribbing of the sole edge is designed through a comparatively elaborate process and takes away the visual heaviness of the solid sole. The bright yellow welt stitching, which has been sewn with a particularly thick thread and with a wide stitch width, is an important eye-catcher. Bill Griggs has created a boot model that is intended to be robust yet light and not clunky, and for whose overall aesthetic impression there was no immediate model. In contrast to other boots of the time, the Dr. Martens 1460 were not designed to be purely functional and practical, but also artistic. The rebellion and distance from the zeitgeist expressed in this way has lived on in the design language of the “Docs” ever since.
On this basis, Dr. Martens, like all other authors, has comprehensive exploitation rights and can thus take action against plagiarism. There are also claims for damages.
We will also be happy to examine the possibility of copyright protection for your creations or suggest alternative legal instruments. So, as always, do not hesitate to contact us.