It is five years since William married Kate. But while the mainstream press focuses on what Prince George is wearing in his first postage stamp, the UK courts are being asked to cast their mind back to 2011 and the intricacies of his mother’s wedding dress.
Bridal designer Christine Kendall has issued a claim for copyright infringement against Alexander McQueen, alleging that its creative director, Sarah Burton, copied her design for the royal wedding dress.
The case has stirred controversy, given the amount of time that has passed since Burton’s design became public, the media exposure Kendall’s business is currently gaining and Alexander McQueen has issued a statement saying the claim is “ridiculous”. However, whatever the outcome, the case does highlight why imitation is not always flattering – and why creatives should be aware of the practical steps they can take to protect their designs.
For there to be copyright infringement there must first be a creative work in which copyright subsists. It is not possible (nor for the most part desirable) to protect mere ideas, only their expression in a “work”, such as a literary, artistic, dramatic or musical work. However, the minimum level of originality required is not a high hurdle, legally speaking, and an original clothing design (ie the sketches and other design documents, as well as the article itself) will likely be protectable. Even a sketch made on a napkin over breakfast could attract copyright protection as an artistic work.
It may seem obvious, but the next requirement for a successful copyright infringement claim is … copying. Often, an important part of a case is proving that the defendant had access to the work in order to copy it. There is no legitimate claim if two designers simply draw on the same inspiration or independently come up with the same, or very similar, ideas. Indeed, “co-incidence” or shared source material is a go-to defence in copyright infringement claims. Kendall makes the point that she sent ideas to Kate Middleton five months before the royal wedding. In so doing, she argues, Burton had access to her designs and copying could therefore have taken place.
So, for creatives who don’t bat an eyelid at sketching designs down whenever and wherever inspiration strikes, a certain level of circumspection is prudent.
Once copying is established, it must be of a “substantial part” of the work. What is “substantial” is judged on quality rather than quantity. Kendall has pointed (literally, via YouTube) to layers and lace applique features at the back of her dress design which she says also appear in Burton’s design. If the court accepts that these are key features of the dress, it will bolster Kendall’s case that a “substantial part” of her work was taken.
Although, it may be tempting to maximise exposure for designs by sending them speculatively to fashion houses, asking colleagues for opinions, or sharing them on social media, it’s good to bear in mind that you may leave yourself open to copying. And, if you design a feature which is particularly inspired, perhaps keep that element to yourself - whilst keeping detailed records of your creative process in case you ever need to protect, or defend, your intellectual property.
We will wait to see whether, when asked if it agrees with Kendall, the court says “I do”.
Elaine O’Hare is a senior associate specialising in intellectual property law at Stevens & Bolton