Creativeworks London: Design and Fashion Workshops

by Federica Pigozzo

On January 23rd and 28th two workshops on the relationship between Intellectual Property and the Creative Industries took place at the Victoria and Albert Museum and at the London College of Fashion, in London. They were part of the Creativeworks London London’s Digital Economy Research Cluster and represent just one of the on-going series of Creativeworks London’s Research Labs. They were run by Chris Reed, Professor of Electronic Commerce Law at the Centre for Commercial Law Studies, Queen Mary University of London.

The aim of the project is to provide a platform where members of the creative community, academics and practitioners have the rare opportunity to come together, discuss and share ideas in order to investigate the subject matter of IP exploitation in the creative sector.

The first workshop focused on Design. Creatives working in different fields, such as illustration, graphic design, film, photography, media and product design participated and a number of interesting questions was raised and discussed.

One of the main concerns for people working within the community seems to be the appropriation of their own work by third parties without giving credit. In an increasingly digitalized world this process has become easier and therefore more common so it is understandable that such issue is seen as particularly relevant in an industry that relies on the digital element as a fundamental aspect of its business.

The implementation of IP rights in the context of a creative framework can be extremely complex due to different factors. First, the nature of the goods in question is such that different provisions are often involved at the same time but, while some aspects of those goods can be granted overlapping protections, some other aspects don’t fall into the scope of any traditional right and therefore are left unprotected. This of course generates confusion. Secondly, even if one or more IP rights apply to the specific case, artists show the tendency not to take advantage of them. Third, in case of infringement, resorting to legal remedies is often considered too expensive. Finally, smaller businesses and independent artists seem to think that taking their claims in front of a judge is always going to be ineffective, especially when big companies are involved as a counterpart.

That being so, alternative remedies and actions were suggested. One of the most interesting points that have been made involves the concept of non-traditional return: since appropriation often cannot be stopped and one of the main goals for upcoming designers is to get their name recognized in the marketplace, attribution for their own work could be considered a valid form of remuneration as it would allow them to increase their following, to strengthen their position and consequently to be able to take advantage of eventual IP rights more efficiently. This would help them building their brand and therefore counterbalance the negative effects of appropriation.

From a more technical point of view, the importance of drafting clear contractual clauses to precisely define the scope of licensing agreements and assignments has been emphasized, as well as the relevant role played by Non-Disclosure Agreements (NDAs) in the protection of trade secrets.

Another significant question concerned the balance between sharing ideas and securing them at the same time. The point is particularly relevant as the issues it raises can undermine the basic principles of Intellectual Property Law itself. In fact, IP rights only protect specific expressions of ideas under specific circumstances and not ideas themselves: if they are not conveyed through particular means they cannot be granted protection. On the other hand, designers expressed their concern over the fact that, in order to put them into effect, ideas often need to be shared from an early stage, when they have not yet been fixated. This situation clearly highlights the existence of a gap between IP regulations and the actual needs of the creative community: this may be one of the reasons why IP laws are sometimes considered more as a barrier rather than as a tool.

The second workshop focused on Fashion. The most peculiar aspect regarding the fashion industry lies in the context in which the community works: inspiration comes from everywhere – exhibitions, artworks, brands’ archives, literature, people on the street – and defining the line that separates inspiration from imitation is an extremely demanding task, especially considering how the reprise of someone else’s work often occur on a subconscious level.

It can also be noticed that the subjective element is particularly relevant within the fashion community as most of its aspects can be brought back to a matter of personal taste, making it particularly hard to set objective standards and to apply them in the context of an evaluation.

The interdisciplinary nature of fashion has been cited as one of the main problems when it comes to legal protection. As the different elements of a fashion creation – fabrics, prints, shapes, cuts, design, functional details – require different forms of protection, the result is a layered combination that in most cases is seen as difficult to implement and disadvantageous from an economic standpoint.

The lack of IP provisions specifically built according to the peculiar needs of the fashion sector seems to be another relevant issue. The long-term protection granted by the most common IP rights is not particularly useful considering the cyclical nature of fashion and the increasingly fast-moving market. This is detrimental to their application and it often makes it necessary for designers to search for different, most effective strategies to protect their work.

For the same reason, some designers decide not to invest time and effort on legally solving copying disputes and prefer to focus on the business dimension and on keeping their production of the highest quality possible to make it harder for competitors and copycats to reach comparable results.

From this point of view, an interesting solution has been prospected. IP protection and the above-mentioned branding strategy could be combined in order to bridge the gap left by legal provisions and help designers – younger ones in particular – to build their reputation and establish their identity on the fashion scene in a stronger, more protectable way. Moreover, such framework could be more effective in striking a balance between the creators’ desire to seek protection and the simultaneous need to provide access to their own work.

As the fashion industry seems to operate at the edge of IP protection, it has been suggested that new ways to exploit the existing legal framework could be researched. Since there is no sui generis protection for fashion design, particular attention should be put into finding innovative approaches to adapt the current provisions to the main peculiarities of this sector.

These workshops provided a great opportunity to share opinions and to see common issues from a different perspective. Since such meetings are not a frequent occurrence, they can be particularly useful for both designers and legal experts in order to understand how the creative industries work and how the law, IP law in particular, can serve as an effective asset in such a particular environment.

Federica Pigozzo

Assistant Editor