Fashion shows today are far more than just couple of models on a catwalk: They include real stories and performances, entail very significant investments and the participation of a great deal of contributors.
Examples vary from the iconic defile on the water of the Trevi Fountain in Rome or the carousel in black, feathers and laces of one of the most famous French maison or, lately, the disruptive set of an hospital operating room with models walking with sculptures of their own severed heads.
Yet, no reported case or article has ever dealt in Italy with how fashion shows could be protected.
One first objection against copyright protection of fashion shows could be that they are a sort of “volatile” creation that is displayed once and for all and would be incapable of being repeated over time, as they have no sufficient unity and definition.
This is only one side of the coin, as modern shows have more often an actual directorship and plot and could be theoretically repeated. In addition, fixation is not a requirement to access copyright under Italian law, which protects also oral works. Thirdly, copyright protection is granted also to creations that might vary overtime within the lines of a given plot (this is the case, for instance, of performance arts).
As to the copyrightable subject matter, Article 2, paragraph 3 of the Italian Copyright Law (“ICL”) grants protection to different kinds of artistic works and − differently from other legal systems as the UK − provides for an open-ended list of copyrightable works.
Thus, fashion creations might well-account for an autonomous work of art (albeit not expressly named by ICL), as long as they meet the originality threshold provided by Italian law, which is traditionally not particularly high.
One may also object that − unlike dramatic works or artistic performances, which have a primarily cultural and entertainment aim − fashion shows have the main commercial purpose to support the launch and, ultimately, the sale of fashion items. This is irrelevant and would ultimately restrict the operation of copyright, by imposing a requirement that is not provided by law. Further, also other works that have a preeminent commercial purpose are protected by copyright law, as in the case of advertisements.
The possibility for fashion shows to access copyright protection opens a list of interesting questions: Who is the author of the work? Are models to be considered as performers? In both cases fashion companies should include in their agreements a clause whereby all the relevant individuals transfer their economic rights as authors, co-authors and performers.
Finally, copyright protection could be accompanied with further tools, like registered or unregistered designs for the single elements of the scene/choreography or unfair competition, if the general look and feel of a former fashion shows has been slavishly imitated.
The protection of fashion shows has been the subject of my opening lesson at the specialist course in Fashion Law held at the University of Milan. If you would like to know more about this topic, please contact elena.varese@dlapiper.com.