Does Intellectual Property really protect independent creatives?

Celebrating its 24 year anniversary, World Intellectual Property Day emphasises the importance of a balanced IP system to recognise and reward creators for their work. Yes, there are patents, trademarks and copyrights to protect inventors but do these really work for the creative arts industry? 

© Trash Club [Ai Generated Image]

The industry is notorious for taking inspiration from others especially when it comes from the fresh and independent creatives.  An example of this is in the UK where the fashion law is vague and the design copyright policy is outdated (last updated in 1973). The subject is implemented across schools and universities such as Central Saint Martins which produces new creative thinkers each year, yet even with precautions in place, students are still seeing designs from their applicant portfolio taken without recognition, employment or pay. 

This is particularly seen in fashion practice which is heavily reliant on commerce, after all, it is the third most polluting industry. Therefore it comes as no surpise that brands are constantly churning out new collections - the constant stream of ideas have to come from somewhere and often times these are from students and upcoming designers. 

“Brands will ask you to create a hypothetical project. They don’t hire you but then put those exact designs on the catwalk,” says a Central Saint Martins 2023 graduate. Since their experience of interning at a textile department for a major brand last year, they noticed that brands “heavily imply” copying, “as much as they try to hide it, [bigger brands] do get inspiration from other designers.” Referencing a friend who worked in Paris, they note, “she was exposed to look at small and bigger designers. They pushed her to look at other work and recreate it.” Although some designers may feel honoured to have their work recreated as a testament to being a strong creator, “others feel that they should earn from the millions that a company is making from a copied design,” the graduate states.  

With that in mind, these experiences can also be related to those working in other design practices. According to Gov.UK, it costs £50 to register a design, £170 for a trademark and a minimum of £310 for a patent which makes it even more challenging for artists due to the personal and expressive nature of their work. 

Yet Eleanor Rockett, the Lecturer in Fashion Law at London College of Fashion, urges and reminds students that copyright is free and in the UK, “arises automatically when a work is created,” she says. “Fashion IP is a grey area because you have to build layers of your rights and prove your unregistered [designs] through evidence,” Rockett tells me. As students create their portfolios to send to fashion companies, Rockett advises to timestamp work evidencing that you created first, consider what is being shared and copyright with a confidential mark or watermark to “reinforce to the company that you know your IP rights,” she further says. In many cases, Rockett has seen that portfolios which “show a step-by-step process on how to make a garment are where the issue starts,” she tells me. This leaves students torn between determining what to share, “you obviously want to show your best work to put yourself in a position of being successful in getting the internship or job” but Rockett notes, “you shouldn’t expect that it’s fine to be copied, because it’s not.”

When students are faced with their designs being copied, Rockett recommends “going down the professional route” and speaking to a lawyer. Sometimes, students might call out a company for copying on social media, but as Rockett tells me, "consider your reputation and the impact that these posts might have on the way that you are portrayed in the industry before you click upload". Companies "should be able to evidence that they haven’t copied you… but lots of brands, big or small, see students as a big part of business, whether that’s idea generation or free work” which is why it is important to understand more about your IP. 

One Instagram account that reports on the issue is @ideservecouture. The owner, Hanan Besovic tells me, “we started paying more attention to copying now, being in the same time frame as Diet Prada,” which is another account policing fashion copies, “we’re in a delicate area because we have social media.” Besovic says, “with cancel culture, it seems that even if you call someone out, they won’t care because it won’t matter.” With an amass of 286k followers, Besovic receives a multitude of DMs from upcoming designers, claiming they have been copied. But Besovic notices that some accusations “don’t hold water.” He recalls, “‘Oh my God, Daniel Roseberry just copied my leopard print dress’… they say it’s because it’s the ‘same length’ but that’s not how it goes.” These overstretched claims discredit designers and those in the future who are genuinely copied. 

© LifestyleAsia

On the other hand, Herizo Robin, fashion entrepreneur, creative sustainability consultant and Trash Club Member based in Lisbon, Portugal argues the opposite. “By copying us, we wouldn’t have a market, right?” Robin recalled his design used by fashion trend forecasting companies, “if they didn’t spread it, I wouldn’t have the opportunity to sell mine and have a market.” Referring to his brand ZOUZOUDAGO, which has explored fashion and biodiversity since 2017, in Madagascar, his homeland known for the richness and endemic biodiversity. The Kering Group released its biodiversity strategy framework in 2019. Robin says, “My fashion brand had a unique voice when I started, for me it was obvious and crucial to address this urgent topic because our natural resources are overexploited and our fauna and flora threatened with extinction. Do I own biodiversity? Certainly not. I feel happy that my idea went viral because we all need to protect biodiversity as a collective effort.”

It’s important to recognise that in some cases a copy loses the value of the original piece and for sustainable works, can end up as greenwashing. If we pride ourselves as sustainable, then shouldn’t that include being transparent about inspiration? As an independent creative, Robin notes that recognising pioneered ideas or collaborating would “be at least respectful; otherwise, we just work for free and exploited.” Independent creatives shift the industry to becoming more equitable. If these voices are ignored, then how will there be a wider, global conversation for positive change?