By: Sofía Núñez
In the fashion industry, there have been numerous conflicts related to the protection of work done by creative people in this environment, mainly by excluding designs and arguing that it is difficult to determine whether they are artistic or not, and whether we can rely on international and local copyright and intellectual property laws to obtain such protection.
First, we must understand what the law considers to be artistic, specifically in the Berne Convention for the Protection of Literary and Artistic Works. After that, we must identify in which category we can relate the creations of the fashion industry and how states should create, contemplate and draft laws that cover the needs of this industry in their respective legal systems.
“Works of a literary and artistic nature” is a broad term that encompasses various creative productions, including works of applied art, which are artistic works that serve practical purposes. Footwear, clothing and jewelry fall into the category of applied arts, as they combine aspects of function and beauty. This classification is in accordance with the definition of works of art applied in Decision 351 of the Common Provisions on Copyright and Related Rights. These works are artistic creations integrated into useful items that can be handmade or industrially manufactured. Three critical factors to consider are:
3. Utility function
To clarify these elements, a work of applied art must have aesthetic value and a practical use, all given by intellectual creation and human ability. This is because it must be something that works and meets human needs, and not just pure contemplation.
Within the fashion industry, it is important to find a balance between aesthetics and utilitarian functionality, which is why not all sectors of the industry can be considered works of applied art. Although art itself is subjective, a “work of art” created within the fashion industry may meet the legal requirements for protection.
Legal protection of fashion designs is slowly spreading, even in countries with no official regulations for the industry. Both national and international laws now recognize the rights of designers. This increasing global integration of the fashion industry is an important development.