How can I avoid being accused of copyright infringement when many of our new season clothes are based on high-end designers’ collections?

Clothing designers will have been looking with interest at the autumn 12 collections shown earlier this year. It is accepted that designers of more affordable clothing will often take ‘inspiration’ from the high-end designers’ collections – the Hervé Léger bandage dress, for instance, has spawned many similar creations. However, there is a thin line between inspiration and copying, but where is the line drawn? 

Simon Bennett, intellectual property specialist at law firm Fox Williams, says that the test in deciding whether a copyright infringement has occurred is whether a substantial part of the original clothing has been copied. This is a qualitative and not quantitative test and there is no fixed criteria to be guided by.

He says: “The idea that making seven changes to a piece of clothing will be sufficient to avoid copyright infringement is an urban myth.” Whether something infringes copyright will depend on the type of changes that have been made to the piece of clothing in question. In some instances one big change will be enough. In other instances, a dozen minor changes will not be enough to prevent a copyright claim. 

There are a number of practical measures that can be taken, educating the clothing designers being the most important. Putting in place a clearance procedure is also crucial. Ultimately, Bennett advises that any clothes based heavily on high-end designers’ collections will have to have significant differences to take them outside any claims of copying.