The growth of the Nigerian Fashion Industry prompt the distinct recognition of Apparel Law which has consequentially led to a need for the law to provide guidance on the myriad legal issues faced by designers and other interacting forces in the fashion world. Fashion law as defined by Sally Kane is the aspect of law that encompasses legal issues surrounding the life of a garment right from conception to brand protection. Fashion law applies generally to apparels, foot wears, accessories, etc. and it cover legal areas bordering on Copy Right, Trademark, Service marks, Utility patents, Design patents, Counterfeiting, Trade Secrets, licensing agreement, advertising and publicity, etc. at every development stage of the Fashion business, the law plays a very important role, the recent case between Christian Louboutin and YSL over Louboutin’s red soled signature shoe and fevershoes’ alledged intellectual property infringement by Ruggedman’s Twentieth September wear (TSW) is a good example of likely issues that may arise in the fashion business. According to the post by Nigeria Entertainment several months back tagged “rugged man stole shoe designs”, “I did not”, rapper insists, Ruggedman TSW shoes were alleged by Natischa Harvey to have copied Harvey’s 2010 collection called “Fevershoes” to which Ruggedman replied ‘they were customised for me; I’ve being working with someone outside Nigeria. Those designs are from somewhere else. I’m allowed to customise with my name’. The question is what does Ruggedman mean by “customize with my name” and is the word known to Nigeria Law? That’s a discussion in the next edition of this piece.
The reality is that, most issues in the fashion and design world revolve around registration of designs, protection of exceptional, conceptual designs and the overlapping proprietary interest of the parties involved in making a design into its equivalent physical style expression. In Nigeria for example, designers often procure the services of support staffs who are experts in various stages of clothing. The garments which may be made locally or imported are acquired by the fashion designer or its affiliate while the main production and sewing is usually done by the support staffs of the designer, some of this staffs specialise in design drawing and others in sewing. So it may be right to say that the Fashion Designer may have a design in his mind, and then he gets a design artist to make a sketched copy of his brainchild that started has an idea and finally the sketched design is then sealed by another employee. This process shows that a lot of hands are involved in the cloth making process which raises the question of ownership of the design and the cloth made eventually.
Most times, the Fashion Designer may have idea but the law only protects the fixation of such ideas (that is, ideas put in tangible form). This means that the proprietary interest in a work vest in the author who physically created the work during the course of his employment. This definitely does not preclude the employee from waiving such proprietary rights through an express written agreement evincing that all intellectual property rights in his work should vest in his employer as author of such work. This is in line with Section 10(2) of Copyright Act which provides that “…where a work not having been so commissioned, is made in the course of an author’s employment, the copyright shall be belong in the first instance to the author, unless otherwise stipulated in writing under contract”
In conclusion, our laws, like most international laws only protect newness and originality of works, therefore for a design or fashion to be protected by the Law, its features must be of exceptional quality. Our courts have held severally that copyright will exist in a given product if the product is the result of some substantial or real expenditure of mental or physical energies of the producer and the labour or skill was not a negligible or commonplace one. But what happens when a person in the words of Ruggedman, “customize with his name” another author’s work? As said earlier, this will be discussion for another piece but it is most issues relating to lawful “customization” borders on fair dealing (also known as fair use in the United States)
The practical tips of avoiding copyright liability, while there is no definitive test for determining whether your use of another’s copyrighted work is a fair use, there are several things you can do to minimize your risk of copy right liability;
I. Use only as much of the copyrighted work as is necessary to accomplish our purpose or convey your message.
II. Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism.
III. By adding something new or beneficial (don’t just copy it – make improvement on it).
IV. If your source is nonfiction, limit your copying to the facts and data
V. Seek out creative commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.
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