Daily Context: Is There a Difference Between Copying Designs For Retail and Copying Designs for Costume?Susan Scafidi on NBC New York, October 28, 2010
There's been a mountain of brouhaha stirring up over the recently-released production stills from the final flick of the Harry Potter series, specifically regarding the wedding dress worn by Clemence Poesy's character, and its undeniable resemblance to a gown from Alexander McQueen's Fall 2008 collection (pictured).
Describing the dress, costume designer Jany Temime notes that its bodice is adorned with phoenixies facing one another to "form the silhouette of a heart. I chose the phoenix because, like love, it is eternal." And while McQueen's particular design features a pair of peacocks, the appliques themselves—not to mention the rest of the dress in terms of fabric and materials, coloring, length—are nonetheless strikingly similar.
As we've reported in the past, there's been little protection for a fashion designer who sees their work being knocked off by another, especially as we wait for the Innovative Design Protection and Piracy Prevention Act to pass. However, we were curious to know how the terms of copyright might differ between a design nicked for the purpose of retail, and one "borrowed" for an artistic project in the form of a costume. Granted, the dress donned by Poesy in the film won't wind up in stores, however the Harry Potter franchise itself is indeed a moneymaking machine. We asked Professor Susan Scafidi, Dean of Fordham University's Fashion Law Institute, to weigh in:
There's generally no liability for knocking off fashion designs under US law. And while Harry Potter hails from Britain, the movies are pure Hollywood -- and thus subject to US law, at least for purposes of distribution here.
And yet, because of the nature of the birds as appliquéd designs, Alexander McQueen's lawyers may have a case.
Even in the U.S. surface designs, like fabric prints or the pairs of peacocks on the two gowns, are considered "applied art" protected by copyright. It doesn't matter whether the print is reproduced onscreen or off, once or a thousand times, on a gown or on a t-shirt—it's still an infringement.
Whether or not the U.S. will ultimately offer any justice in this particular instance, Harry Potter could still be in hot water over on the other side of the pond. "When the movie is shown in Europe, which does have legal protection for designs—onscreen or off—there could be additional liability," adds Scafidi. "My advice would be for Harry's lawyers to negotiate a quick license agreement."
Given how fiercely protective J.K. Rowling and the book series' publishers have been about the unauthorized use of the Harry Potter brand, suing anyone who uses its characters, language, and names of locations without permission, there's definitely a scolding in order.