Question
Recently, I have become interested in drawing, so I have been looking at pretty clothes and unique fashion shows online and using them as references for the characters I create, sometimes even dressing my characters in outfits that closely or identically imitate what I see.
After I finish the drawings, if I upload them to the internet along with the original image and its source, would that still constitute copyright infringement? I previously heard that copying a clothing design is not copyright infringement as long as you do not copy the logo. Is that actually true? I am also curious whether the rules are applied differently in other countries. Where is the line when it comes to copyright protection for fashion?
Answer
Because clothing has practical purposes and functions, not every element of fashion is protected by copyright.
When a creative expression of a person's ideas or emotions is incorporated into a useful article, the aspects of that article that qualify for copyright protection are referred to as a "work of applied art."
The scope of protection for such works of applied art is limited to creative expressions—such as the patterns or shapes of the clothing—to the extent that those expressions can be separated from the functional aspects of the clothing.
Therefore, although the scope of copyright protection for clothing may be relatively narrow, it is absolutely not true that copying a clothing design does not constitute infringement as long as you do not copy the logo.
In particular, the U.S. Supreme Court recently recognized a cheerleader's design as a copyrightable work and, in that decision, established a standard that allows for a relatively broad scope of protection. Accordingly, particularly in the United States, the scope of copyright protection available in the fashion industry is expected to expand, and disputes involving copyright infringement are likely to become more frequent.
That said, it is not possible to give a blanket answer. However, as you asked, if you draw a character wearing clothing whose shape or pattern you have almost exactly copied from a unique fashion show and then upload the drawing to the internet, there is a high possibility that this could constitute copyright infringement—even if you provide the source, if you have not obtained the copyright holder's permission.
However, whether copyright infringement has occurred may vary depending on the specific circumstances, such as what fashion was used as the reference and how similar the resulting work is to the original.
Determining copyright infringement, particularly infringement involving works of applied art such as fashion, is not easy even for legal professionals.
I have previously published a paper after reviewing numerous domestic and international cases in this field. I recommend seeking assistance from a specialist in this area before a copyright infringement issue arises.