IP attorney says there’s a lot of copying, “inspiring” in fashion world
16 January 2023
In the fashion industry, designers get a lot of inspiration from each other and resort to a lot of copying, according to Elena Szentiványi, director at Henry Hughes Intellectual Property in Wellington.
“The fashion industry is perhaps different from other industries due to the fast-moving and seasonal nature of garments. From season to season, designs and colourways change and many manufacturers are selling the same styles at the same time,” she said. “There is either a lot of inspiring or copying going on!”
Szentiványi added there is no legal definition of “inspired.”
“I would expect a person who is inspired by an existing work to create something in their style which would be different from the original, for example when artists such as David Hockney, Roy Lichtenstein and Jackson Pollock have been inspired by the work of Pablo Picasso,” she explained. “Inspiration is different from imitation.”
Szentiványi was commenting on a recent accusation of dress design copying involving a small clothing brand from Greece and a major fashion retailer with over 140 stores.
In December 2022, Devotion Twins accused Decjuba, a leading Australian-New Zealand retailer, of copying the design of its Ella dress which famous celebrities have worn. Devotion Twins’s resort-style dresses are known for their unique designs and jacquard fabric. Decjuba’s Freya line of clothing, included in the brand’s latest summer collection, bears a very similar design.
A legal letter had been sent to the Decjuba head office.
According to Szentiványi, the Ella and Freya dresses do appear to be very similar when viewed separately. Their designs feature repeated lines of the same three patterns. Both have bodices with tiered skirts and long sleeves with added ruffles.
“However, when viewed side by side, there are clear differences in the placement, order and spacing of the lines of pattern. It appears from an internet search that both the patterns used on the Devotion Twins dress and the style of the dress are used and made by various different manufacturers.” she said.
“Under New Zealand law, an original work is considered to be infringed or copied if a substantial part is taken. It is not necessary for the plaintiff to show that the defendant copied the whole of the copyright work or that the copying was exact. It is enough if the plaintiff demonstrates that the defendant copied a substantial part of the copyright work. Under New Zealand law, where there is substantial similarity between the two garments, this is considered to be prima facie evidence of copying and also of access,” added Szentiványi.
She stressed that what amounts to a substantial part in an artistic work depends more on qualitative visual impression rather than on quantitative analysis.
- Espie Angelica A. de Leon