November 10, 2023

Copyright protection for theater costumes and wardrobe

This article has been written by Mr. Ishu Yadav, a 3rd year student of Indian Institute of Management Rohtak.

Abstract

The copyright protection of theater wardrobe and costumes is thoroughly examined in this article. An overview of the importance of theatrical clothing and their possibilities for copyright protection is given at the outset. Using instances like the Gilbert and Sullivan case and character merchandise, the historical overview emphasizes the connection between costume design and copyright law. The following section of the article explores the protection offered by copyright laws in India, such as the Trademarks Act of 1999, the Geographical Indication Act of Goods Act 1999, the Copyright Act of 1957, and the Design Act 2000. It covers the fundamentals of copyright, particularly the requirements for costumes to qualify for protection. The article then addresses copyright infringement in the apparel sector, including counterfeiting, unauthorized copying, and knockoffs, as well as the rights of costume designers in this context. It also emphasizes the consequences of copyright violation under different Acts. Additionally, the essay highlights the various legal systems around the world while discussing global viewpoints on copyright protection for theatrical clothing.

Keywords: Copyright, Costumes, infringement, protection, creator, designer etc.

Introduction

The theater is a fascinating medium where a variety of artistic mediums are used to create compelling stories. In this story, theater clothing and wardrobe are essential because they let actors become people and give the stage realism. Beyond their artistic and visual significance, these outfits frequently have hidden worth in the form of the possibility of copyright protection. We shall traverse the complex terrain of intellectual property rights in the theater sector in this in-depth investigation of copyright protection for theatrical wardrobe and costumes. The historical background, the principles of copyright, the requirements for costumes to be eligible, the rights of costume designers, concerns about copyright infringement, the idea of “fair use” in theater, global viewpoints, difficulties and disputes, and the future of copyright in this creative field will all be covered in detail.  

Whether it is for a famous painting, sculpture, one-of-a-kind technological design, jewelry, or fashion, an artist makes his own ideas. They could be used exclusively by the artist. However, we regularly witness imitations or duplications of these patterns. When designs are replicated in any way or when copies of any type are manufactured that closely resemble the original layout or composition, the creator’s rights are violated. To address this issue and protect the original ideas, laws have been put in place. It is deemed a violation of copyright and original artist’s design for anyone to replicate the ideas of another creative.

Copyright protection refers to a designer’s ability to employ copyright laws to protect his creative works.

Historical Overview

In order to comprehend the current viewpoint of copyright protection for theatrical costumes, it is essential to examine the historical background. The complex link between costume design and copyright law has been brought to light by a number of instances and examples that have appeared throughout time. An example of this may be found in the late 19th-century operetta “H.M.S. Pinafore” by Gilbert and Sullivan. The two claimed their distinctive designs were a type of intellectual property and filed a lawsuit against a competing theatrical company for creating a costume that was eerily identical to that of their play.

Character merchandising first emerged in the 1930s when Walt Disney Studios began licencing its highly popular characters, including Mickey, Minnie, and Donald. Later, one of its employees opened a department store that focused on using these characters, and it was remarkably successful in obtaining multiple licences for the production and sale of inexpensive goods to the general public, including clothing, toys, posters, badges, and drinks. The history of the advertising industry has shown how the popularity of well-known figures may raise awareness of and significantly boost enthusiasm for particular goods and services. The main character sources for character marketing are literary, dramatic, and filmic works. Placements similar to those in “Toy Story,” where toy character marketing is facilitated by character-centered films.

Character merchandise is defined as the adaptation or secondary use of a fictional character by one or more authorised third parties. This exploitation relates to the character’s fundamental personality traits, like name, image, or appearance, and it is done to establish a connection between the products and these personality traits so that customers will be more likely to purchase the product or use the service as a result of their attachment to the character. In terms of commercial exploitation, fictional characters may play primary or secondary roles in advertising, recognition, and promotion. But in the case of a real person, the part he performed as well as his financial value as a celebrity may be used.

In India, laws pertaining to designs and copyright provide protection for an artist’s unique work. The following are some pertinent legislation that safeguard the apparel industry:

  • Copyright Act of 1957: The Act safeguards artists’ unique creations as soon as they are placed in a permanent format. In contrast to other types of intellectual property rights, copyrights are inherent in works from the time they are represented in a definite form, regardless of whether a registration request has been made or not.
  • The Design Act 2000: The goal of the Designs Act of 2000 was to protect aesthetically pleasing non-functional components of products, such the way forms, patterns, decorations, lines, and colours are arranged on any two-, three-, or two-dimensional form.
  • The Trademarks Act 1999: Through the registration of the trade name, the Act seeks to safeguard the brand name by making it impossible for anybody else to use it without repercussions.
  • The Geographical Indication Act of Goods Act 1999: The GI Act attempts to safeguard location-specific art forms from unapproved usage and branding since some textiles and artistic creations are native to particular areas.

Protection under The Copyright Laws

  • Copyright Basics:

Prior to delving further into the realm of theater costumes, let us first clarify some basic concepts related to copyright. A legal notion known as copyright gives authors exclusive rights to their unique works of creativity. Within the context of theater, these works include the visual components, such as set and costume design, in addition to the screenplay and music. Copyright protection is contingent upon the fulfillment of specific requirements. 

  • Copyright Protection for Theatre Costumes:

Whether theater clothes are eligible for copyright protection is the central question at hand. Costume designers devote their entire being to making garments that are both artistically expressive and useful. The requirements for costumes to qualify for copyright protection will be discussed in this section. Costumes need to be unique and artistically expressive in order to be protected by copyright. There are restrictions on the copyright protection of costume elements, particularly those with utilitarian characteristics. Examples of these include the cut and fit of a costume. A costume designed largely for practical reasons could not receive the same amount of protection as one that is solely artistic. 

  • Costume Designers and Copyright:

Costume designers own rights to their works just like any other creative. They create the visual identities of the characters, and their creations have the potential to become legendary. We shall examine costume designers’ rights in relation to copyright in this section. The only rights to make copies, give them away, and exhibit their costumes belong to them. These rights shield individuals from third parties making money off of their creative work and allow them to decide how their designs are utilized in productions. But when costume designers work on theater performances as “work for hire” or when ownership issues come up, their rights can get complicated. 

 

Copyright Infringement in the clothing Industry

The theatre world is not immune to copyright infringement. When does a theatre costume cross the line into infringement, and what are the consequences? Real-life examples will shed light on the nuances of copyright issues in theatre costumes. An illustrative case is that of the Broadway musical “The Lion King,” which faced a lawsuit for copyright infringement concerning the use of distinctive costume designs resembling those of the avant-garde theatre group, Julie Taymor. 

The various methods through which copyright infringement takes places in the fashion line are as follows:

  • Counterfeiting: Counterfeiting, to put it simply, is “to imitate or feign especially with the intent to cheat or to make a copied replica of.” Counterfeiting, as used in the fashion business, is essentially making a cheaper version of a popular design and selling it. The fashion industry’s long-standing practise of counterfeiting was recently brought to light by the film “House of Gucci[i]”.
  • Unauthorised Reproduction or Uncredited Use: Facsimiles of textile prints, patterns, etc. can be created through unauthorised manufacture if the original owner has given permission. Conversely, uncredited usage is utilising copyright-protected material without the owner’s consent or giving them credit for their creation. In these kinds of situations, the copyright holder loses their ability to be recognised for their contributions.
  • Knock Off: It describes the unauthorised manufacturing, use, imitation, or creation of trademark and logo replicas without the required authorization or licence from the trademark owner.

Penalty for Infringement of Copyrights in the Clothing Industry

  • Sections 103 to 109 of the Trademarks Act 1999 outline various penalties, both monetary and non-monetary, for using someone else’s trademark without authorization.
  • Furthermore, Chapter XIII of the Copyright Act 1957 lists the several violations covered by the Act as well as the associated charges and punishments.
  • The offences and associated penalties are outlined in Section 22(2) of the Design Act 2000.

Case Studies:

Diamond Comic Ltd. & Anr. V. Raja Pocket Books & Ors

In this case, the plaintiff was granted the right to turn the defendant’s identity into comics. The defendant is the owner of the well-known character “Shakitman.” The defendants started making their own comics after the character gained notoriety in the comics industry and gained popularity due to the plaintiff’s marketing efforts. The Honourable Delhi High Court decided that the defendant could not profit from his character by making his own comics since doing so would violate copyright because he had provided it to the plaintiff.

Rajesh Masrani v. Tahiliani Designs Pvt Ltd

In this instance, Rajesh Masrani was prevented from manufacturing and marketing fabric that was like to that used in Tahiliani designs by an injunction order. They contended that the designs need to be registered under Section 15(2) of the Copyright Act 1957. The High Court decided that because the original work was made in less than fifty pieces and existing in a fixed form, it was not covered under the Design legislation and is instead protected under the copyright legislation.Only twenty limited edition works by Tahiliani Designs were produced, and they were given protection from copying, selling, or promoting the same design.

Star India Pvt. Ltd v. Leo Burrnett

A consumer product called “Tide Detergent” was created by the defendants and advertised under the slogan “kyonki bahu bhi kabhi saas banegi.” It included characters with a notion akin to the Plaintiff’s family members from the daily soap opera. First of all, it is evident that the two are not identical replicas and that there is no significant resemblance, which goes against the notion of a substantial test in this case. The case was declared in favour of the Defendant, who claimed that no infringement had happened, because the Plaintiffs were unable to demonstrate any damage that had occurred or may occur in the future.

International Perspective

Copyright protection for theater costumes is not the same worldwide. Each country has its own set of standards and approaches when it comes to intellectual property in the world of theater. It is essential to understand these international perspectives and the relevant treaties and agreements that apply.

In the United Kingdom, for example, costume designs can be protected under copyright law as artistic works. This means that just like paintings and sculptures, costume designs in the UK are eligible for copyright protection. This recognition aids in safeguarding the creative efforts and originality of costume designers.

However, it’s important to acknowledge that other countries may have different legal frameworks and regulations concerning costume copyright. These variations arise due to diverse cultural, historical, and legal contexts. Understanding these differences is crucial for both creators and consumers of theater costumes, as it ensures compliance with local laws and intellectual property rights.

To navigate the complexities of costume copyright, it is imperative for individuals involved in the theater industry to familiarize themselves with the specific laws and regulations in each jurisdiction. This knowledge will enable them to make informed decisions regarding the protection, use, and licensing of costume designs, while respecting the rights of the original creators.

While the protection of theater costume copyright is not uniform globally, awareness of international perspectives and legal frameworks is vital in order to navigate the intricacies of intellectual property in the theater industry effectively.  

Challenges and Controversies

The interplay of theater, technology, and copyright poses a series of challenges and sparks controversies within the creative realm. This essay will delve into some of the prominent issues related to copyright protection for costumes and explore how the fast-paced development of technology affects the field of theater design. One key aspect of this intersection lies in the advent of 3D printing technology, which has revolutionized the way costumes can be created and replicated.

The rise of 3D printing technology has brought about both opportunities for innovation and risks of potential infringement in the realm of theatrical costumes. On one hand, this technology provides costume designers and creators with a powerful tool to bring their imaginative visions to life. With the ability to create intricate and unique costume pieces, 3D printing allows for unprecedented levels of customization and detail in costume design. This opens up exciting possibilities for enhancing the overall visual experience of theatrical productions.

However, along with these opportunities, the accessibility and ease of 3D printing also introduce challenges in terms of copyright protection. As 3D printers become more accessible and affordable, the risk of unauthorized replication and distribution of copyrighted costume designs becomes a concern. This raises questions about how copyright laws can adapt to an increasingly digitized and replicable world. 

The interplay of theater, technology, and copyright is a complex and evolving landscape that necessitates careful examination. As technology continues to advance, it is crucial for creators, designers, and lawmakers to navigate the challenges and controversies surrounding copyright, ensuring the protection of their original works while embracing the possibilities that innovation brings to the world of theater design.  

The Future of Copyright and Theater Costumes

It is necessary to consider future developments in copyright law with regard to theatrical clothing as time goes on. The theater sector is likely to experience significant changes as a result of the changing intellectual property landscape. We will examine the issues raised by these changes in this section. 

 

One aspect that particularly piques interest is the integration of virtual reality (VR) and augmented reality (AR) in theater. These emerging technologies offer new and exciting possibilities for costume design and performance. However, they also pose distinctive challenges and opportunities in terms of copyright. 

With VR and AR, the boundaries between the physical and virtual realms blur, creating an immersive experience for audiences. Costumes in this context could range from traditional physical garments enhanced by digital elements to entirely virtual costumes. The question then arises: How should copyright law adapt to this new paradigm?

The unique nature of VR and AR technologies necessitates a reevaluation of traditional copyright frameworks. While protecting tangible costume designs presents challenges in itself, further complexities arise when virtual elements are involved. Questions regarding ownership, licensing, and derivative works come to the forefront, demanding careful consideration.

Striking a balance between encouraging innovation and safeguarding creators’ rights will be paramount. Collaborations between costume designers, technologists, and legal experts will be vital in navigating these uncharted territories of copyright in theater. By exploring the possibilities and addressing the challenges, the theater industry can harness the power of VR and AR while ensuring the continued protection of intellectual property rights in costume design.  

Conclusion

The link between theatrical clothes and copyright is complex and dynamic. It entails striking a careful balance between promoting artistic innovation in the theatrical business and protecting the artistic aspirations of costume designers. In this field, creativity and intellectual property rights are particularly closely intertwined, and as technology continues to change the theater industry, it becomes more and more important to give careful thought to copyright issues.

Theater costumes serve as a tangible testament to the ingenuity and craftsmanship that copyright law endeavors to shield and uphold within the performing arts arena. They are not merely articles of clothing; rather, they represent the embodiment of characters, convey emotions, and enhance storytelling. Costume designers pour their creativity into every stitch, fabric choice, and accessory, transforming written words into visually captivating performances.

However, navigating the territory of copyright and theater costumes is no easy task. Different countries have divergent standards and approaches to costume copyright, making it challenging for creators to ensure adequate protection for their designs. It is imperative for artists, designers, and theater companies to comprehend the specific legislation governing costume copyright in each jurisdiction in order to safeguard their rights and foster a conducive environment for artistic expression.

As the curtains rise and fall on stages around the world, theater costumes continue to be an integral part of the performing arts. The realm of copyright in this context demands ongoing attention and deliberation to strike a harmonious balance between preserving artistic integrity and encouraging innovation. By valuing and respecting the creative efforts of costume designers, while also embracing the ever-changing landscape of technological advancements, the theater industry can continue to thrive and evolve within the boundaries of copyright law.  

References

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