Mary Katrantzou: The Importance of Symbolic and Typographical Artistic Expression within Copyright Protection

 

By Lígia Carvalho Abreu (2015)  

 

 

“M for Moon or Monument” from the A to Z project  by Mary Katrantzou. Panthalassa Dress from Mary Katrantzou’s 2015 Spring/Summer RTW Collection. Images:  Courtesy of Mary Katrantzou

 

The links between art and fashion are more apparent now than they have ever been. To my mind, the best of our designers are indisputably artists; it just so happens that they have chosen fabric as their medium instead of paint or clay. Daphne Guinness in Art/Fashion in the 21st century[i]

 

To consider fashion designers as artists has never been a consensual subject among the fashion community. Some prefer to see themselves as creators of utilitarian items: wearable clothing. Others place particular emphasis on the artistic aspects of their designs achieved by a high level of their adopted skills, technological knowledge, imagination or personal identity and concerns.

A similar discrepancy of positions regarding clothing as a merely utilitarian item or as an artistic expression also exists in copyright laws and court decisions.

For instance, the United States’ copyright law does not recognise protection in designs which are “solely dictated by the utilitarian function of the article that embodies it”[ii]. Thus, works of artistic craftsmanship are copyrightable insofar as their form but not where their mechanical or utilitarian aspects are concerned[iii].

American courts tend to apply this utilitarian clause to dress design and, as a consequence, do not consider the shape and style of a dress nor the manner it is assembled and tailored as being copyrightable. In addition, pictorial or graphic works incorporated by fashion design (such as fine, graphic and applied art, photographs or prints) can be protected only if they are “identified separately from, and are capable of existing independently of, the utilitarian aspects”[iv] namely: shape, style, cut or dimensions of the garment.

In the United Kingdom, copyright law only protects fashion design if considered as original artistic work (for example: graphic work, photography, sculpture or collage, irrespective of artistic quality) or the work of artistic craftsmanship[v].

 In France, copyright law protects works of the mind inherent to the personality of the author, which includes:

 

The creations of the seasonal industries of dress and articles of fashion. Industries which, by reason of the demands of fashion, frequently renew the form of their products, particularly the making of dresses, furs, underwear, embroidery, fashion, shoes, gloves, leather goods, the manufacture of fabrics or of special use in high fashion dressmaking, the products of manufacturers of articles of fashion and of footwear and the manufacture of fabrics for upholstery shall be deemed to be seasonal industries.[vi]  

 

US Copyright law also protects original fashion designs. However, in practice, the requirement of originality imposed by the US law seems to be entirely dependent on a physical and conceptual separation of the design elements from the utilitarian aspects of clothing.

Is this criterion relegating originality to a secondary position?

Which law is fairer for creative designers?

Even if fashion is a commercially motivated form of expression, in current Ready-to-Wear (RTW) and Resort collections, it is possible to distinguish those which are driven by an intellectual pursuit similar to fine art, to create original aesthetics and a unique identity from those totally motivated by commercial reasons, emphasising the act of reproduction and the absence of authenticity.   

In current RTW panorama, Mary Katrantzou has already proven to be one of the most creative designers of her generation. Her symbolic and typographical artistic expression is based on the visual effect of a combination of colour, shape, symbols and patterns, as well as on the redefinition of contemporary fashion design by the harmonisation of opposite aesthetics.

Copyright protects the original work of authorship fixed in tangible forms of expression. In order for it to be original, the piece must be creative. It should be unique in style and substance, the result of independent labour, skills as well as the author’s judgement and not a copy of previous work created by another author. The creativity requirement does not oblige the author to demonstrate complex work or a high level of skills employed in its execution. If it incorporates other existing work (derivate work) it may require, as rightly said by Alexandra George: “A higher degree of creativity that is more than trivial, and which has sufficient originality in itself once the originality of work (s) on which it is built is disregarded.”[vii]

The Dixicult Dress created from Swiss lace and featuring a racing stripe decorated with embroidered symbols, is a true work of artistic creativity and craftsmanship. The unification of all the individual design elements which compose this dress presents an artistic value.

 

Dixicult dress from Mary Katrantzou’s 2014/2015 Autumn/Winter RTW Collection. Image: Courtesy of Mary Katrantzou

 

A sheath dress embellished with intertwined saffron orange and violet Suisse lace giving shape to letters composed by a variety of objects and animals or, a dress embroidered with and highlighting the letters L, O, V and E in order to represent the word Love, are both functional and works of artistic craftsmanship. Among the many inspirations for these 2015 Resort garments are the extravagant and complex manuscripts of the Book of Kells.

 

Dress embroidered with the letters, highlighting the L, O, V and E in order to represent the word Love, from Mary Katrantzou’s 2015 Resort Collection. Image: Courtesy of Mary Katrantzou

 

The visual appeal of this masterpiece of western calligraphy has inspired a resort collection devoted to a pictorial interpretation of the alphabet and also inspired Mary Katrantzou to design the costumes for a ballet choreographed by Justin Peck and performed at the New York City Ballet. The title of the piece, Belles Lettres, was crafted considering Mary’s designs and “a category of literature value for its elegant aesthetics”[viii]. The intertwined Suisse lace forming letters also grants artistic value in these functional Ballet costumes.

By looking at Mary Katrantzou’s symbolic and typographical artistic expression inherent to those garments, and product of her own skills, we not only identify her as a designer but also her own signature. This symbolic and typographical language expressed in her designs is a work of the mind inherent to the author’s personality. For this reason, they can be protected by French Copyright law.      

However, according to the United Kingdom legislation, in order for work to be considered as artistic, and consequently protected by copyright, it must be either: a graphic work (painting, drawing, map, chart or plan, engraving, etching, lithograph, woodcut or similar work), a photograph, a sculpture (a cast or model made for the purpose of sculpture) or a collage, irrespective of artistic quality, a work of architecture, this being a building or a model for a building or a work of craftsmanship with artistic characteristics.[ix]

As Iona Silverman states:

 

Logically, a work of fashion should be an original artistic work. Case law, however, does not favor this argument as garments and other works of fashion do not fall neatly into any of the listed sub-categories of artistic works. The most appropriate category, works of artistic craftsmanship, requires a work to be both artistic and a work of craftsmanship[x].

 

Case law in the United Kingdom tends not to consider artistic fashion designs which are intended for mass production and those merely “pleasing to the eye”[xi]. A sufficient degree of creativity and the intention to create an artistic piece of work that is aesthetically appealing seems to be the most common fundament to define “Artistic”[xii]. Iona Silverman notices that:  

 

While works of fashion are likely to be considered works of craftsmanship if they are one-off-pieces, the position with respect to mass produced goods is unclear. In Hensher v Restawhile, Lord Reid and Viscount Dilhorne said that the requirement for craftsmanship implies that a work must be hand-made whereas Lord Simon held that “craftsmanship” cannot be limited to handicraft; nor is the word “artistic” incompatible with machine production.[xiii]   

 

Thus, for British copyright law, a high level of craftsmanship is needed in order for a dress, for instance, to be recognised as artistic craftsmanship. 

In France, copyright law does not follow a closed list like the copyright law in the United Kingdom which exists for artistic work.  Fashion designs are directly protected by French copyright law in the context of article L112-2 (14) of the Intellectual Property Code. Thereby, fashion designs have a broader scope of protection in France. 

Mary Katrantzou has also created graphic art named The A to Z Collection which is printed on the brand’s sweaters and t-shirts. This graphic art is protected by copyright law whether it is in the United Kingdom, France or United States. They are artistic original works independently created by the designer.

Nevertheless, the shape of those sweaters and t-shirts are not different from those which already exist in the market. Their shape is common, not original. Mary Katrantzou does not have an exclusive right to make sweaters and t-shirts of the same shape, although she has exclusive rights over her graphic works.

The shape of a long sleeved playsuit is not an original item. However, the long sleeved Lotus Playsuit with the letter motif printed in shades of mint and cornflower blue is original by the composition of colours, patterns, shapes and printed letter motifs. 

 

 

“D for Divers” from the A to Z project  by Mary Katrantzou. Lotus Playsuit from Mary Katrantzou’s 2015 Resort CollectionImages: Courtesy of Mary Katrantzou

Mary Katrantzou creates fashion designs which are not identical in visual appearance to other fashion designs by using a non-conventional approach to materials that meld the language of style with technology. 

For her first pre-fall collection, she used houndstooth, paisley, check and tartan. These symbols of classic heritage textiles are not the creations of Mary Katrantzou. However the designer has reimagined this fashion legacy according to a contemporary approach of style, by using her heritage print and technological knowledge.

Homage to fashion classic textiles from Mary Katrantzou’s 2015/2016 Pre-Fall Image: Courtesy of Mary Katrantzou

 

This reinvention is original due to its result: the combination of particular colours, shapes and styles in which those symbols of fashion textile heritage appear. 

If in her first pre-fall 2015 collection the focus was all on the rework of those classic heritage textiles, in her 2015/2016 Fall RTW collection the approach to a contemporary style is centered on the visual perception of opposite aesthetics (Horror Vacui versus Modernism) and the consequent reinvention of a new style supported by technological knowledge.

Horror Vacui/Heritage Opulence versus Modernism/Techy Utopia from Mary Katrantzou’s 2015/2016 Fall RTW.  Image: Courtesy of Mary Katrantzou

For instance, the restrained rectilinear of a white molded tank top adorned with foam and plastic are the elements of modernism and techy utopia. This is combined with a skirt completely covered with paisley motifs, the symbol of the Horror Vacui reluctance of leaving a space without ornamentation in order to create a style of heritage opulence, which was, for instance, the stylist perception of interior design during the Victorian Age and, also of art during the Greek geometric period.

 

Mary Katrantzou uses a non – conventional approach to materials that meld the language of style with technology as well as artistic reasoning. In this context she creates fashion designs which are not identical in visual appearance to other designs. They are the result of an independent creation. 

For the US Supreme Court an original work of authorship is one that is “independently created by the author”[xiv] and “possesses at least some minimal degree of creativity”[xv]. It must have “some creative spark”[xvi] and not be a “mere mechanical reproduction”[xvii] of a work that already exists. 

The little dancing creature, half man half animal, which appears on the drawing of the U letter within The A to Z Collection is also embroidered on a dress which reinvents the classic oxford blue cotton shirt. This is done by using sheer tulle embellished with those little dancing creatures and structured bugle bead embroidery at the hem, thus named the Fizer Dress.  

    

 “U for Umbrella” from the A to Z project by Mary Katrantzou. Fizer Dress from Mary Katrantzou’s 2015 Spring/Summer RTW CollectionImages: Courtesy of Mary Katrantzou  

In the United States fashion design elements such as the little creatures of the Fizer Dress can be physically separated from the dress itself only if, according to case law, they are removed from the dress and separately sold, without adversely affecting the functionality of the dress[xviii].  An element of the dress would be conceptually separable from the dress itself if it invokes in the viewer a concept separate from that of the dress function[xix] and if its addition is “not motivated by a desire to enhance”[xx] the functionality of the dress. The tailoring and the shape of the dress are not capable of existing separately from the dress, as a consequence they cannot be copyrightable.    

However, the reinvention of the classic oxford shirt, the way the lace dancers and creatures are artfully placed, the structured bugle bead embroidery and the arrangement of all these elements transform the Fizer Dress into an artistic work of craftsmanship.

The works of artistic craftsmanship are copyrightable in the United States “insofar as their form but not where their mechanical or utilitarian aspects are concerned”[xxi].

Also according to the United Sates case law the arrangements of decorative sequins and crystals on a dress bodice or the layers of tulle in a skirt are design elements used “precisely to enhance the functionality of the dress as clothing for a special occasion”[xxii]. Those design elements, according to case law, serve to cover the body. They have a ““decorative function” so that decorative elements of clothing are generally “intrinsic” to the overall function, rather than separable from it”[xxiii].  As a consequence, those design elements failed to meet the requirements of the clothing physical and conceptual separation in order for it to be copyrightable.  

The Clocktopia and the Tikiman Dresses from Mary Katrantzou’s 2014/2015 fall collection are embellished with embroidered symbols, sequins, pearls and glass stones.

Clocktopia dress from Mary Katrantzou’s 2014/2015 Autumn/Winter RTW Collection. Image: Courtesy of Mary Katrantzou

Although those elements have a decorative function and cannot be separated from the dress, they have an artistic original value.

Originality also means authenticity. Authenticity is not only related to tangible forms but also intangible forms such as the intellectual perception of the world, of nature, of objects and their relationship with man expressed through the creative act and transformed into clothes.

The intangible quality of a work makes it more close to art. In spite of her creative universe being primarily based on pure aesthetic considerations related to the visual effect of dress design elements such as, the colour, shape and material combinations, Mary Katrantzou creates an original visual communication that transcends the utilitarian vision of fashion design, which also gives strength and character to the brand.

 The Clocktopia and Tikiman figures which embellish the Clocktopia and Tikiman Dresses, have acquired an individual existence separated from those garments. They are the main characters of a short film named The Love of Clocktopia and Tikiman which has an inner message: “Where there is love there is life” by  Ghandi. Clocktopia and Tikiman are sorts of totemic characters. Alferd Reginald Radcliffe- Brown once wrote that a Totem is an object of ritual attitude:

 

Because it is the concrete representative or emblem of a social group. And the function of the ritual attitude towards the totem is to express and so to maintain in existence the solidarity of the social group. (…) Totemism does more than express the unity of the clan; it also expresses the unity of totemic society as a whole in the relations of the clans to one another within that wider unity.(…) Totemism is part of a larger whole, and that one important way in which we can characterise this whole is that it provides a representation of the universe as a moral or social order[xxiv].

 

 Maybe Clocktopia and Tikiman represent an appeal to a ritual attitude towards a social order ruled by Love.

The strong visual effect of the asymmetric sequined jacquard and glitter panels shown on top of the sheer tulle of the Panthalassa dress is the result of a reflection about the movement of the shifting tectonic plates when supercontinent Pangaea was breaking apart, surrounded by the Panthalassa Ocean. The hand-made lace on the Geri Dress or on the front and back of the sleeveless glitter embellished Ursulon Dress was inspired by the movement of spiraling dancers.

Ursulon Dress from Mary Katrantzou’s 2015 Spring/Summer RTW Collection. Image: Courtesy of Mary Katrantzou

 

A reflection about the parallelism between the motion of the Earth’s lithosphere and the dancers’ movement applied to the woman’s figure has led Mary Katrantzou to embellish the Ursulon and the Fizer dresses with symbols of the evolution of life, from sea to land. The Ursulon dress features an illusion tulle yoke and a large pearl-embellished sea creature with anachronistic legs. On the Fizer Dress, the little creatures, half man half animal on their dancing shoes, reflect that notion of evolution and movement.

Mary Katrantzou is constructing a fashion heritage that goes further than the originality of the tangible part of her creations.

The development of this original heritage also depends on the recognition of her copyrights.  

 

[i] Mitchell Oakley Smith and Alison Kubler (2013). Art/Fashion in the 21st Century. Thames & Hudson.

[ii] U.S Copyright Law, § 1302 (4):  http://www.copyright.gov/title17/

[iii] U.S Copyright Law, § 101 (Pictorial, graphic and sculptural works): http://www.copyright.gov/title17/

[iv] Ibid.

[v] United Kingdom Copyright, Designs and Patent Act, article 4:  http://www.legislation.gov.uk/ukpga/1988/48/contents

[vi] French Intellectual Property Code, Book 1: Copyright, article L112 -2 (14): http://www.copyright.ht/hypertext/code_de_la_propriete_intellectuelle.htm  

[vii] Alexandra George. Constructing Intellectual Property. Cambridge University Press: 2012, 212.  

[viii] Mary Katrantzou, https://www.marykatrantzou.com/projects/belles-lettres/belles-lettres-the-production

[ix] United Kingdom Copyright, Designs and Patent Act, article 4.

[x]Iona Silverman. “Copyright and Fashion: A UK Perspective” WIPO Magazine, June 2014:    http://www.wipo.int/wipo_magazine/en/2014/03/article_0007.html

[xi] Ibid.

[xii] Ibid.

[xiii] Ibid.

[xiv] Feist Publications, Inc. v. Rural Telephone Service Co.: 1991, 499 U.S. 340 at 355.

[xv] Ibid.

[xvi] Alexandra George, Constructing Intellectual Property, 212. 

[xvii] Ibid.

[xviii] United States Court of Appeals for the Second Circuit No. 12-598-cv (2d Cir. Oct 15, 2012). Jovani Fashion § 3 :   https://casetext.com/case/jovani-fashion-ltd-v-fashions

[xix] Ibid. § 4.

[xx] Ibid.

[xxi] U.S Copyright Law, § 101 (Pictorial, graphic and sculptural works): http://www.copyright.gov/title17/

[xxii] United Sates Court of Appeals for the Second Circuit No. 12-598-cv (2d Cir. Oct 15, 2012). Jovani Fashion § 5.

[xxiii] Ibid.

[xxiv] Alferd Reginald Radcliffe- Brown, (1952) The sociological theory of Totemism. First published in the Proceedings of the Fourth Pacific Science Congress, Java 1929, 125, 129 and 131:   http://iscte.pt/~fgvs/RB.pdf