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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22553
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I have a wedding dress business and I'm wanting to offer

Customer Question

I have a wedding dress business and I’m wanting to offer custom made designer inspired dresses where people can send in photos of a dress style they like and we can have it made for them. The photos they provide will be of designs from all over the world. I just want to check that this is legal and not breaching any copyright laws etc. Any information you can provide will be hugely appreciated.
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

That can be tricky where you copy something designed by someone else. Under the Copyright Act you can copy for reasonable use, and where the dress is original artistic work, then you need to be careful. To help you understand this, artistic work is defined-

"artistic work—

(a)means—

(i)a graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality; or

(ii)a work of architecture, being a building or a model for a building; or

(iii)a work of artistic craftsmanship, not falling within subparagraph (i) or subparagraph (ii); but

(b)does not include a layout design or an integrated circuit within the meaning of section 2 of the Layout Designs Act 1994"

Expert:  Chris The Lawyer replied 1 year ago.

The issue of whether the original is a work of artistic craftsmanship can be difficult to define precisely. Some designers of course use standard designs that have been around for a long time and are not more than variations on standards. Others may be very original and unique. Tracking ownership can be difficult as well. Since you will generally be making only one copy, this should be fairly safe however. If a bride made her own dress using an original as the pattern, she could get away with this, but a commercial dressmaker would need to be more careful. The risks are however not great, and even if the copyright owner complained you had copied, then the damages would be small in any event, although obviously you want to avoid that possibility. So I suggest make some effort to see if the design is artistic craftsmanship or just generic. Proof of the effort should help in most cases.

Customer: replied 1 year ago.
Morning Chris,None of our gowns will be an exact replica so if I avoid the term 'replica' and use the terms 'designer-inspired' or 'generic', and never claim that our custom gowns are an exact copy but instead claim that they will be a 95-99% likeness to the original design, with your experience and knowledge do you suggest that will be ok?Here is a response I received from a business in Australia who are doing the same thing as what I want to. Please let me know if this is correct?
"With regard to your concern about legality, yes, it is in fact perfectly legal to copy designer wedding dresses, in the same way that food manufacturers make generic brand products at the supermarket. For example, even though there is only one genuine "Glad Wrap" product, there are several other plastic cling wraps you can buy much cheaper. Thousands of products
have a generic brand option offered right next to the high profile brand on the supermarket shelf, usually for half the price or less (because they are contained in plain packaging and with no expensive advertising or marketing) - and that is certainly the case with us - we offer generic brand wedding dresses custom made at a fraction of the price of the genuine brand.
Our dresses are produced without a brand label, just the care labels are inside the dress and plain packaging. We also don't invest in supermodel photo shoots or expensive advertising which keeps the prices down".You suggested to make some effort to see if the design is artistic craftsmanship or just generic, how would I go about doing this? Would I have to find out the country of the particular designer and do a web search somehow? Please let me know the best way to go about this.For marketing purposes when I use the original designers photo compared to the end result of the gown we've made to show potential customers on my Facebook page and website, will I need to credit/reference the original designer? Sorry probably a silly question but id like to cover all bases.And just to be clear do designers need to apply to copyright their designs or are they automatically covered by copyright.Also Ive read that in America textile prints are subject to copyright but A garment's overall design is not. I read this on the web "At first it boggled my mind that Forever 21 wouldn't steal the unprotected garment design, but would steal the protected fabric print," says Fordham University law professor and fashion legal expert Susan Scafidi. "Because as a legal strategy, that is a complete inversion — it makes no sense. If you're going to steal, steal the things that aren't legally protected." Does this mean that there is no need to check if the design is artistic craftsmanship or just generic if its an American designer?I think thats all for now.Look forward to hearing from you
Expert:  Chris The Lawyer replied 1 year ago.

With those changes you suggest, you should be safe. If the dress was an exact copy, there could be a problem, but if you are just "inspired by" that is legitimate.

Customer: replied 1 year ago.
Hi Chris. I SHOULD be safe or I WILL be safe? I'm after confirmation that I'm not breaking the law, and if what i am doing is illegal i'd like to know what I need to do to tweak the process and make it legal.
Expert:  Chris The Lawyer replied 1 year ago.

I would prefer to say it is quite unlikely you will have a problem. I would not go so far as to say it is absolutely safe, but that may be a lawyers caution.

Customer: replied 1 year ago.
Hello. I realise it is quite unlikely but the reason I contacted this page is so I could be sure what I intend on doing is legal. I would like to work with another expert. Please make my question available to other experts.
Expert:  Chris The Lawyer replied 1 year ago.

What you are doing is definitely not criminal in nature but a small chance of civil liability for breach of copyright which is about damages rather than criminal liability. I am the only NZ expert on this site however and you can choose to not accept my answer and consult with your lawyer. They will charge their usual fees of course

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