Upcycling adds value to products
Upcycling is a term given to adding value to recycled products through transformation of the original or the creation of something new by using parts of pre-existing products. Upcycling is a new trend promoted by those interested in a more sustainable lifestyle. With increasing consciousness of the consequences of waste and obsolescence on our environment, upcycling has been embraced in the fashion industry.
The upcycling practices of three fashion designer/makers who sought legal advice regarding the legitimacy of their activities provide a means of explaining the potential legal implications for upcycling. Their questions focused on whether their actions infringed the rights of the designer or manufacturer of the original garment.
Adding artwork, embellishment and decoration
Ilona buys multiples of a product from last season’s ranges at a discounted price. She then modifies these new garments by for example adding details such as velvet trimming to plain pants, new buttons, frills or transforms the garment by removing a collar from a jacket or cutting a skirt shorter. Another upcycling practice involves painting or printing text or her original artwork onto a new garment such as a plain t-shirt. She was selling her clothing at markets and to small boutiques.
Ilona removes the existing designer’s label and affixes her own to the transformed garment. She was concerned whether her actions infringed the rights of the original designer.
Creating a vintage ensemble
Heidi approaches upcycling from a recycling perspective. She buys vintage clothing from charity shops and, markets and fabric off cuts from clothing manufacturers. She deconstructs the garments and reshapes to create a different style such as a fitted dress out of a baggy t-shirt. Pieces of fabric from the original garment would be used in her own design. She may create a ruffle or belt using fabric from the deconstructed garment to transform a vintage garment she has altered to a contemporary style. Alternatively parts of different garments could be assembled to form a new piece; sleeves from a silk blouse would be attached to the bodice of a fitted jacket. She affixes her own label and sells the garments through etsy, the online international craft retailer.
Reinventing second hand clothes
Amber buys second hand denim jeans, jackets and skirts in bulk from overseas and then adds her own mark and style to them by slashing, adding patches, paint, distressing the fabric and so on. She keeps the original label on the garment, as well as any embroidered logo and designs on the pockets, stitched on labels and buttons bearing their original trade mark. She adds her own label and sells the modified garments at markets and to boutiques.
Rights of the original designer and manufacturer
To determine whether the upcycling practices described infringe the legal rights of the original designer or manufacturers, enforceable rights must subsist in respect of the original garments. If intellectual property (IP) or other rights exist, then it is necessary to determine whether the practices described infringe or breach of these rights. Laws relating to copyright, designs trade marks and trade practices may apply.
Copyright subsists in artistic works such as drawings and works of artistic craftsmanship. Thus the original fashion designer’s illustrations and dress making patterns would be protected by copyright. One off designs or a work of a character that is of the nature of couture or high fashion maybe considered a work of artistic craftsmanship and the garment itself protected by copyright. However, in the cases of designs of a more utilitarian character, such as a T-shirt or generally items such as mass produced pants and shirts where these garments have been mass produced and sold, copyright protection in most instances would be lost.
Where Ilona buys garments in past season’s ranges of a more utilitarian character like a t-shirts, it is likely that the original designer no longer holds any copyright.
Certainly in the case of the mass produced denim garments that Amber modifies, it is highly likely that the right to rely on copyright would have been lost. With regard to vintage garments the same rules apply and copyright may also have expired.
To infringe copyright it is necessary to exercise one of the exclusive rights of the copyright owner; reproduce in material form, publish, or communicate online the copyright work.
It is unlikely that the upcycling practices described are an exercise of these rights. Deconstructing the garment and creating something new or re-using fabric is not a reproduction of the original. The situation is analogous to creating a collage by cutting up existing artistic works such as photographs and creating a new work comprised of these parts.
Although the graphic design of the fabric maybe protected by copyright, again that design is not being reproduced in the deconstructing and making of a new garment.
If a designer has chosen to register a design for a particular garment they have a monopoly to make and sell that design in relation to clothing for a period of 10 years.
To infringe design rights it is necessary to make or commercially deal with the design or a design that is substantially similar in overall impression without the consent of the registered owner.
Adding or subtracting from the original garment as Ilona and Amber do is unlikely to be considered making the design. As Heidi is creating her own designs she is not making the original design either.
It is arguable whether the sale of a transformed garment would be considered an unauthorised exploitation of the design. The doctrine of exhaustion of rights applies in this context so once the original garment is sold, the registered owner’s rights are exhausted. Whether or not there is an infringement of rights, would depend on whether the making and sale of the transformed garment was the exploitation of a design that is substantially similar in overall impression to the original.
A trade mark maybe registered in respect of a name, mark or even a design that covers the whole of an article such as the Burberry signature fabric. To infringe trade mark rights, you have to use the registered mark or a mark that is substantially identical or deceptively similar as a trade mark (ie. to show trade origin).
In the instances described, the Ilona and Heidi affix their own labels to their finished garments so there is no use of the original trade mark to identify the source of the goods. If Heidi reused a piece of a signature fabric that was registered as a trade mark, whether or not she infringed trade mark rights would depend on whether the use would be considered to be a use that indicated the origin of the goods. In the case of a well know mark this may be the case.
In Amber’s case the garments still bear their original trade mark on labels and embroidery. Trade mark infringement is unlikely in this context given that the doctrine of exhaustion applies. Once goods are sold, generally, they maybe resold as second hand goods bearing their original trade marks.
It is an offence under s.148 of the Trade Marks Act to knowingly or recklessly remove a registered trade mark from goods. Ilona’s actions in removing the original trade mark from the garment, affixing her own, and given the original garment is largely in its original form may contravene this provision.
Trade practices and passing off
There is some risk of contravening laws concerned with preventing unfair business practices, the action for passing off and s.52 and 53 of the Trade Practices Act and equivalent state Fair Trading laws by the upcycling practices of all three designers.
Arguably, Ilona maybe engaging in misleading and deceptive conduct or making a false representation when she affixes her own label to a garment largely designed by another, particularly where the original designer is well known and where her alterations are nominal or superficial. It may also be argued that Ilona and Amber are suggesting that the original designer consented to their modifications to the original garment when permission was not sought. A use of a disclaimer, stating the garment was upcycled or similar may assist but would not necessarily be conclusive.
As Heidi’s practice involves the creation of something unrecognisable from the original in most instances she would be unlikely to contravene laws concerned with protecting business reputation. The exception would be in the case of the use of a well known signature fabric, particularly one used by the original owner as a trade mark. Depending on the circumstances such a use may indicate a connection to the original designer or trade mark owner that does not exist.
A guide to IP for the Australian clothing and fashion industry is provided by the national registration body IP Australia at www.ipfashionrules.gov.au.