Fashion and intellectual property: Some designers are sharing, selling their garment patterns
14 December 2020
Some fashion brands are now either giving out their garment patterns for free or selling them so that people can make their own clothes instead of buying them.
According to an article in Fashion Journal, The Woolmark Company’s free designer patterns are now available in its website.
Liam is also selling its garment patterns via its website. Liam is a sister brand of the designer label Ruby which has stores in Auckland, Hamilton, Wellington and Christchurch in New Zealand. Buyers of the patterns receive the garment pattern paper and a Liam label to be sewn on the finished piece of clothing. Founder Emily Miller-Sharma told Fashion Journal that the idea cropped up during the lockdown in New Zealand.
Great idea, especially at a time when online shopping is becoming more popular than ever. But how safe is this practice for the designer and the business?
Open access of garment designs does involve risks. But, misuse of intellectual property is mostly committed innocently by those who are unaware they’re infringing somebody’s IP, according to Irene Calboli, professor of law at the Texas A&M University School of Law in Texas and visiting professor at the Nanyang Business School, Nanyang Technological University in Singapore. They buy one of these patterns from the Internet, use it to sew their clothes and then decide to make more garments so they can sell these. And they think it’s perfectly alright, when it’s not.
At the same time, there are the bad actors who deliberately misappropriate IP. These bad actors may even include a business competitor.
The risk of one’s IP being misused by a competitor is always present, said Jenni Rutter, a partner at Dentons Kensington Swan in Auckland.
However, the process of copying a design does not necessarily require the availability of a garment pattern.
“It’s fairly simple to deconstruct a piece of clothing and copy its design elements even without a pattern. A lot of basic garments also do not have a high level of originality. The patterns for many garments may not even attract copyright protection. The desirability of a garment to a buyer will often come from the quality of the tailoring, the quality and distinctiveness of the fabric, and of course the brand,” Rutter explained.
There is also the case of the pattern finding its way into the hands of a person whose finished product does not live up to the standards of the brand.
“This as an issue brands will need to manage,” Rutter said.
“I think it entails a lot of opportunities particularly for certain brands to continue to keep relevant in the mind of consumers through a different set of activities rather than just buying products on a normal shopping experience,” said Calboli.
“I think it is very important to contextualize the practice and authorize. Here, we’re not talking about people downloading designs without authorization from the Internet and then copy them and changing them and adapting them,” she said. “We’re talking about people taking designs that are authorized by the creator and disseminated with authorization to use by the creator.”
According to Calboli, the problem starts when some fashion designers and small businesses just want to be relevant but do not know the technicalities involved in sharing their designs. Some of them may have decided to open up their garment patterns to the public to gain a bigger share of the market and be more famous. If a user starts selling products based on the patterns without attribution to the original creator of the pattern, this defeats the purpose.
“These creators should be very smart about how they go about that,” said Calboli.
To prevent misappropriation of IP, Calboli and Rutter enumerate some measures which fashion designers may implement:
- Choose which designs to share. Hold back more complex patterns.
- Embed the logo in the designs. Make sure it’s somewhere relevant
- Provide diffusion sew-in labels such as the brand plus the word ‘DIY’ or ‘HANDMADE.’
- The terms should state the trademark, copyright, design right symbols together with the designer’s name and the date on all design documents.
- Include a copyright notice not just in the terms of sale but also on all patterns that are sold. The notice should set out the terms for use of the pattern e.g. that it is licensed for personal use only and not for commercial use. “This is industry standard on most patterns and means the buyer can only copy the pattern to produce clothing for themselves or as gifts and not clothing to sell,” said Rutter.
“There are ways to, as a win-win, allow the designer to still be relevant and present in very challenging circumstances,” said Calboli, “but at the same time to have the knowledge and understanding to protect their IP.”
According to her, protecting fashion design is one of the most challenging because “the terms of protection of design are different across countries and at the same time, the industry cycle of fashion is so fast that by time the law can actually follow through, that collection is already old and so there is no point in trying to seek legal remedies when the market has moved on already.”
Rutter agrees on the idea of striking a balance.
“I think brands should balance the positive benefits of sharing some designs and know-how to generate brand loyalty, with the trade-off of disclosing patterns that are unique to the brand,” she said. “It’s a great idea to boost brand awareness if brands are sharing some of their patterns that aren’t too complex.”
Rutter also believes sharing garment patterns is a sensible move given the need and demand for more ethical and sustainable fashion.
Espie Angelica a. de Leon