IP Protection of Fashion Shows in Italy: A catwalk through the unknown

Fashion shows today are far more than just a couple of models on a catwalk. They include real stories andperformances and are significant investments involving many contributors. Examples include Fendi’s iconic defileon the water of the Trevi Fountain in Rome or, recently, Gucci’s show set in a hospital operating room, withmodels walking with sculptures of their own severed heads. However, no reported case or article has everconsidered whether and how fashion shows, as examples of intellectual property, should be protected.

Objections

One objection against copyright protection of fashion shows isthat they are a “volatile” creation. Because they are displayedonce and are impossible to repeat, they have insufficient unityand definition. However, the fashion shows of today often havea plot – a storyline – that could theoretically be repeated. UnderItalian law, fixation is not required for copyright protection, andoral works are also protected. Also, copyright protection in Italycan be granted to creations that vary over time within the lines ofa given plot (as is the case for performance arts).

Another objection is that, unlike dramatic works or artisticperformances which primarily have a cultural aim, fashion showsprimarily have a commercial purpose: supporting the launchand sale of fashion items. However, Italian law imposes norestrictions on the operation of copyright protection for worksthat have a commercial purpose. Further, other works that havea pre-eminent commercial purpose, such as advertisements, areprotected by copyright law.

Are fashion shows copyrightable?

Italian law protects many different kinds of artistic works.In contrast to other legal systems, Italian law sets out an openendedlist of possible copyrightable works. Fashion creationsare thus capable of copyright protection in Italy and could beviewed as autonomous works of art, provided they meet theoriginality threshold.

Interesting questions

If fashion shows were to be granted copyright protection, anumber of interesting questions would arise. A key issue wouldbe: who is the author of the work? Furthermore, are the modelsto be considered performers? In order to protect their works,fashion companies would need to ensure that the rights ofany individuals involved in the shows, as authors, co-authorsand performers, were transferred to the company. In addition,copyright protection could involve other elements, such asregistered or unregistered designs for individual elements of thechoreography, or unfair competition, if the look and feel of aformer fashion show has been slavishly imitated.

Looking ahead, the future of the copyright protection of fashionshows is uncertain, but certainly interesting.