Protecting the unprotected: Clothes, bags, and shoes

Copyright law doesn’t protect facts and products that serve utilitarian purpose. Clothing serves a utilitarian purpose. The primary function of clothes is to cover our bodies. Same can be applied to shoes and bags. The shape of shoes – pump, sneakers, flats – is not protected by copyright, so are shape of bags. The purpose of shoes is to protect feet so we can comfortably walk on the street.

Imagine if the shape of tote bag is copyrighted. That means every brand that produces tote bags has to pay a hefty licensing fee. In the eyes of law, as long as a fashion product is used to prevent nakedness, it serves a utilitarian purpose.

This is how fast fashion companies operate without getting into trouble. What small artists and designers can do is utilising social media to promote their artworks. While the law cannot stop fast fashion companies from copying, public recognition helps the artists or designers to reclaim their work. For instance, Tuesday Bassen whose illustrations have been blatantly ripped-off by Zara. Bassen’s followers called out the fast fashion company on Twitter and Instagram. Then there is Forever 21 who has been embroiled in 50 and more legal battles with luxury brands.

But how do we provide a layer of protection to our design?

There are ways to create protectable elements that can be applied to clothing, shoes, and bags. One of the most used tactics is slapping the brand’s logo on clothes, bags, and shoes. It’s a practice that gave birth to the 90s logomania. Another way is to create prints or artwork. However, prints and artwork have to be original and possess a distinctive style of an artist in order for the artwork to be protected by copyright law.

In short, creating a sunflower print from a sunflower image obtained from Google image is not sufficient to be considered as original artwork. There has to be unique characteristics in the sunflower drawing or sketch that set the artist apart from others, or if sunflower is the brand’s trademark.

Designers can also implement features that can serve as aesthetic purpose on their products. A feature that can beidentified separately from and is capable of existing independently ofthe utilitarian purpose of the product is qualified for copyright protection. For example, sculpture design on bag handle. It can be decorative in nature and used as jewellery.