Commissioning work: Who owns the rights in this scenario?

Question

My Colleague is currently in debate with someone they previously worked with last year in collaboration, under who owns the rights to the items in the following scenario.

The scenario is: A group of four people, created a hair/fashion show - organising and planning all aspects, inclusive of hair/clothes/music/inspiration. Meaning the entire collection, was of their own idea, and creation.

Outfits were purchased by these four people, and needed some modification, (modifications being some illustrations applied). so under recommendation from a friend an individual (The Designer), offered this service without any discussion or need for payment.

The Designer was provided with all materials needed to do this, as to not incur any cost to themselves, also given a brief and reference images to use to ensure the end result was as excepted and fitted with the overall collection.

These outfits (and now modifications), became part of the final 'collection', which is owned by that of the 4 who orchestrated it.

My question is:

Where the work is of the designers hand, but was only created by them after being provided all materials, and a brief with reference images, not of their own ideas. Do they own any rights/copyright to the clothing items?

Answer 1

If the "Designer" did any original design work, creating a new design for the clothing involved, even if it is a minor variation on a standard pattern, that creates a copyrightable work, whose copyright will have initially vested in the designer. Who provided physical materials is irrelevant. Who provided ideas may not be. If the person mentioned in the question as the "designer" in fact simply implemented other people's ideas and made no original design work, then there may be no copyright. If, however, the designer did original design work to translate general ideas into actual clothing design, then the designer has a copyright, which may or may not be shared with those contributing ideas, depending on the factual details.

Copyrights are not "obtained", in the UK and the US (and all other countries that are members of the Berne convention) they are automatic on creation of any copyrightable work in any tangible form, and a work of clothing design can definitely be original enough to be copyrighted. (But it might not be.)

This will not, however, give the designer ownership of the physical clothes. That is separate from ownership of the copyright, if any, in the design.

As to any images, such as of cartoon characters, used on the clothing, copyrights in those will be that of the original creators of the image. if the designer modified the images, then that probably creates a derivative work, which is a copyright infringement unless permission was obtained or the design had been released under a permissive license.

If these clothes are not being reproduced in quantity for sale, there is a good chance that the copyright owner will not notice, or will not bother to sue for infringement, but that is no guarantee. If the images were used to advertise the show, or are late used to advertise the clothes for sale, and the images are trademarked, that might well be a trademark infringement, and the trademark holder might sue. In the US one may obtain a trademark merely by using a logo or image in trade, but in the UK trademarks must be registered to be protected.

None of the copyright or trademark issues would affect the actual ownership of the physical clothes.

How much design work the designer did and whether a copyright would result is a factual issue that cannot be answered from the info in the question. If the only changes made were to apply the image, then there would be no original design in the clothing itself, and so no copyright in it.

Note that when one purchases a "pattern" for a shirt or dress, even though it is not very different from many other similar articles of clothing, it will carry a copyright notice and be protected by copyright.

Answer 2

Copyright

Copyright subsists in original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and the typographical arrangement of published editions [Copyright, Designs and Patents Act 1988, s1]. Specifically, fashion is a "work of artistic craftsmanship" [s4].

The author ("the person who creates [the work]" [s9]) is the first owner of the copyright [s11] unless it is made by an employee in the course of their employment which is not the case here.

The 'designer' is definitely an author although it is arguable that the work is actually one of joint authorship s10 between the 'designer' and the 'four people'. An alternative is that the 'four people' hold copyright in the "reference images" and that the 'designer' holds copyright in the fashion items; I think this is more likely.

However, if the information provided to the 'designer' amounted to a design such that the fashion items are merely a 3D realisation of the design with no creative input by the designer then the fashion items are a copy of the design with no independent copyright. From the description, this seems unlikely - a design would require a fully detailed pattern such that multiple craftspeople using it would produce essentially the same output.

As there has been no transfer of copyright, whoever had it originally still has it - probably the designer.

The physical items

These belong to whoever owned them originally - a mechanic does not take ownership of your car if they work on it so similarly a dressmaker doesn't take ownership of your clothes.

Answer 3

I think I understand your question now. When something is copyrighted or trademarked in the clothing world, it is the graphic or image on the t-shirt and not the shirt itself.

For example, if you put the picture of a character from a book or movie on a shirt, whoever owns the copyright of the picture of that character decides how it can be used. The person making the shirt, just makes shirts and can only put images he or she owns on them.

If you guys just made shirts, there is nothing to own or not own. Anyone can make a t-shirt. Obviously, you can get a green shirt at lots of different stores. If there is some specific graphic or image on the shirt you made, you can copyright the image and then you decide how it is used not just on clothes, but everywhere.

This article gives a step by step view of how to trademark a clothing brand: https://info.legalzoom.com/trademark-clothing-label-23907.html

Here is a little more explanation on copyrights and trademarks in fashion:

Copyright law protects the designs on the surface of clothing just as it protects designs on the surface of a canvas or sheet of paper. The U.S. Supreme Court also addressed this issue in Star Athletica v. Varsity Brands, stating that “two-dimensional designs appearing on the surface of [clothing]” including “combinations, positionings, and arrangements” of shapes, colors, lines, etc. are protectable by copyright. https://copyrightalliance.org/ca_faq_post/copyright-fashion-designs/