Does this look similar to you?
A piece from Manish Malhotra’s collection, Persian Story and an eerily similar one on Kalki Fashion
A piece sold by a leading lifestyle store (L), allegedly plagiarised from designer Nida Mahmood’s collection.
Now, we all know that there is no such thing as a 100 percent original design. Hell, there’s not even a 100 percent original sentence.
But a blatant, shameless theft of creativity is a dishonest appropriation of someone else’s ingenuity and is, for lack of a more diplomatic phrase, downright deplorable.
Last month, fashion designer Rohit Bal announced that each and every piece from his collection, which was unveiled at the recently concluded India Couture Week, had been copyrighted.
Every picture from Anju Modi’s recently unveiled collection on her Instagram also sternly warns infringers of “due legal action and consequences”.
Calling Out Copycats
A piece from designer Seema Mehta’s collection (L), allegedly plagiarised from Rohit Bal’s collection
Even designer Nida Mahmood accused a big lifestyle retail chain of copying her design.
To the addition of Chandni Chowk and intra-industry copying, there is, nowadays, a new addition to the mix: online shopping portals selling fakes at one-third of the price.
And the designers are sick of it. FDCI, or the Fashion Design Council of India, too is now pulling up its socks. It has invited lawyer Safir Anand, an expert in trademark and IP issues, as a special invitee to the board of directors to help designers navigate the issue.
But Indian design is complicated. It has elaborate patterns rooted in history, and age-old silhouettes. So what is copying in the world of Indian design and what is not?
Intellectual property rights advocate Eashan Ghosh, says “it’s about what is available in the public domain, and what is not.”
The entire fashion industry revolves around originality being created in terms of its application to templates. So for example, there is a Jodhpuri suit, which is available in the public domain. But the pattern you add to it is exclusive to your label. And that’s a pretty clear distinction. You would have to demonstrate that you have added originality to a piece. But unfortunately, the case often depends on the defendant’s defense in this case.Eashan Ghosh, intellectual property advocate.
Designer Raghavendra Rathore, who has patented various techniques and details of the classic 'Bandhgala', that have now become synonymous with the Raghavendra Rathore brand, adds
It’s not about the percentage of copying. If I have, say, an element that is 100% original and unique to my brand, even if somebody copies a bit of it, I still have a strong case.Raghavendra Rathore, Fashion Designer
But What About the Smart Copier?
A Manish Malhotra ensemble worn by Aishwarya Rai (L) and an exceedingly similar one by Asiana Couture (R)
Ghosh explains to us in simple layman terms: If you have copied 100% of the sherwani pattern that I have created, then it is a clear case of copyright infringement. So, if I sue you, and ask the court to stop this pattern from being released, there can be two kinds of orders: Under the first order, you would be permitted to make the sherwanis, but you would not be permitted to use that design. Under the second order, you would not be permitted to make sherwanis at all. That’s a much harder threshold.
But here’s the caveat: Cases like these are very time sensitive, so it’s important that you resolve the issue before the person is releasing their collection. Therefore a lot of these cases go into settlement.
So How Does a Judge Decide What is Plagiarism, and What is Not?
A lehenga by Gujrati Fashions (L), that ‘borrows heavily’ from designer Anushree Reddy’s creation (R)
The judge literally compares the design side by side to see if there is a visual similarity. In copyright law as well as design law, the comparison isn’t a technical one. You have to look at it in terms of the definition of the term, design. So if there is a certain pattern, or a certain style of colour or embroidery you believe is infringed, you will provide the court with samples as part of your court documents, and the court will compare your piece with the ‘copied’ piece, side by side. And I mean, literally side by side.Eashan Ghosh, intellectual property advocate.
The rule of thumb is not the percentage of copying, but that of substantial copying, Ghosh says. So if you say for instance, copy 3/4th of a painting, that is substantial copying. But if that happens to coincide with the core quality (novelty) of a product — even if a limited amount of that is copied — it is substantial copying.
So, Does it Make Sense?
With the huge costs involved in litigation, and the fact that with different iterations, it becomes harder and harder to argue for the case of a copyright violation, does it really make sense?
The process – and the cost – of copyrighting every design, season after season, is tedious no doubt, but key designs must be protected.Raghavendra Rathore, designer
The injunction law is one of the most effective pieces of law that we have. So if you get that first order, you can get the defendant to the negotiating table in six months.Eashan Ghosh
But it is still financially a downhill battle to go for the small guys who can’t pay damages.
Court fees run into lakhs. And so, it doesn’t make financial sense for them to go for the small guys. But it makes sense where the volumes are big.Eashan Ghosh
Like in other cases too, it is the power of the collective that can ultimately save the design industry from its carbon copies that are cleaving away its profits.
“If all of these designers got together with a zero tolerance stance towards plagiarism, suing every single case of infringement that they come across, then that would be too much risk for the infringer”, says Ghosh. “Right now designers have a very inconsistent view on this. Some designers will want to sue, some won’t. They sue one infringer and don’t sue the other. Which can be used as a defense by the defendant.”
As the designers contemplate their next steps legally, a sure shot way to stop plagiarism almost instantaneously seems to be by embarrassing the so-called copycats.
(With inputs from IANS)
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