Law and fashion: the boundary between creation and plagiarism

Plagiarism and other intellectual property misconduct are risks to which the fashion industry is inherently exposed, and which can affect both designers and the companies that run the business, with legal, ethical and reputational implications

Alessandri Legal -  Fashion is a form of artistic expression of the human being that reflects the mixture of culture, customs, identity and trends of a moment in history. Fashion designers are constantly looking for inspiration to create their work, which can come from countless sources, whether from nature, history, art or even from other designers. However, without the necessary knowledge, it is possible that an inexperienced or distracted designer may not clearly identify the boundary between inspiration and plagiarism and end up using or altering someone else’s work.

The fashion world is particularly exposed to the risk of plagiarism, or other types of copyright infringement, due to several factors, such as the special dynamics of the rapid changes of seasons and collections that lead designers and large companies to be tempted to use works of third parties that are publicly and easily accessible on the Internet.

Plagiarism has been understood as "an infringement of the author’s right that basically consists of publishing someone else’s work as one’s own" (Miguel Ángel Emery). Plagiarism, in general terms, can be: intentional or unintentional; total or partial; and/or direct or indirect. Whatever the case, plagiarism causes damage to the author of the work, to the work itself, and to the reputation of the original artist. For example, the unauthorized use of a design by a company that is against the artist’s values.

From a criminal perspective, Law 17.336 has made reference to plagiarism in the catalog of crimes against intellectual property, particularly through the criminal type of Article 79 bis, which mainly protects the paternity of the work. On this point, Elisa Walker has pointed out that "the IPL only typifies a crime whose purpose is to protect the moral rights of the author’s right. Thus, the law states that "whoever falsifies a work protected by this law, or whoever edits, reproduces or distributes it falsely displaying the name of the authorized publisher, suppressing or changing the name of the author or the title of the work, or maliciously altering its text, shall be punished [...] This criminal offense is punishable by law [...]. [...] This criminal offense corresponds to the crime of plagiarism in a broad sense."

In the event that a copyright infringement is detected, the first recommendation for the affected party is always to have sufficient means to prove the quality of author or right holder with respect to the intellectual creations made. For this purpose, it is advisable to register the works before the Department of Intellectual Rights or, at least, in platforms that provide a certain date of creation of the work and its authorship. Although our law has recognized automatic protection, it will always be better to have the respective certificate in order to establish the legal presumption of authorship in case of having to negotiate or litigate an eventual infringement of the right.

In case of copyright infringement, the first thing to do is to try to reach an amicable out-of-court settlement. If this option is not accepted by the alleged infringer, it will then be possible to initiate legal action to seek monetary compensation from the author of the work, and even to seek criminal liability.

From the perspective of companies that work with designs protected by copyright, we recommend giving the necessary inductions and courses to their creative teams so that they are informed of the consequences that a mistake or lack of due diligence could cause them or their employers. In addition, it is advisable that they have the corresponding legal structure in terms of work contracts, regulations, policies and ethical codes, so that designers commit to work based on original or duly authorized designs. This is especially relevant considering that plagiarism is included in the catalog of crimes for which companies may be criminally liable, according to the new Economic Crimes Law No. 21,595.

It should be noted that the risk involved in using other people’s designs may affect industries other than fashion in which images are also used, such as labels printed on products, advertising, packaging, among others.

Having professional guidance to address these risks and achieve these objectives is a good way to avoid incalculable damage to the company’s reputation.

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