Fashion's Art Inspiration: Infringing or Perfectly Acceptable?

While the fusion of art and fashion is far from novel, we have seen it popping up on an array of runways lately, and sometimes the inspiration that designers derive from paintings or drawings and the like is more obvious than others. So, what exactly is the protocol when a designer samples (to put it in musical terms) the work of an artist? Well, it depends. But to shed some light on the matter, we have a few recent examples and some relatively straight forward explanations. Up first: Jun Takahashi's Spring/Summer 2015 collection for Paris-based label, Undercover.

Art fans, and anyone who read's review of the Undercover collection knows that the prints we saw on an array of dresses were lifted from Hieronymus Bosch's triptych, The Garden of Earthly Delights. A bit of the unavoidable copyright law background is this: The creator of an original work is granted a bundle of exclusive rights in the work. This includes the right make and distribute copies of the works, the right to create derivative works based on the original, and the right to display the works publicly.

Because the Copyright Act has changed a bit over time, the amount of time for which a specific copyright lasts depends on a few things, but we can break it down simply by saying that all works created/published prior to 1923 are in the public domain in the U.S., meaning that the copyright protection no longer applies and the works are essentially fair game to copy. Works created in or after 1978 are granted copyright protection for a term ending 70 years after the death of the author. I have left out the years in the middle because they are subject to an array of complications stemming from the need to publish and register a copyright, and renew it, etc.

So, what does this mean for the Undercover collection, as it clearly contains the copyrighted work of Bosch? More specifically, a question someone posed to me on Twitter (hey, Mariela), would Undercover have to pay the Bosch foundation for rights in connection with its S/S 2015 collection? And the answer is no. Bosch completed the work in 1510, making it well overdue in terms of copyright protection, and thereby, removing any need for Undercover to gain authorization to copy the original work or for brand to pay a royalty fee. The same logic goes for Rodarte's use of Vincent Van Gogh's Starry Night and Sunflower Series for Spring/Summer 2012 (pictured below), Dolce & Gabbana's continued utilization of Byzantine art on its creations; and Virgil Abloh's use of Caravaggio on his streetwear garments - just to name a few examples. If, however, the Bosch work was currently subject to copyright protection, the story would be different, and absent authorization (and a subsequent license) from the Bosch foundation (the organization that owns any existing intellectual property rights stemming from the artist's work and name), it would certainly amount to copyright infringement.

What about when works currently enjoying copyright protection are copied in the name of fashion? Well, that's what we saw in 2012, when the trustees of artist Vera Neumann’s estate filed a copyright infringement lawsuit against Kate Spade for copying one of Neumann's original prints. The trustees, who own all of the artist’s copyrights following her death (the copyright that the prints are subject to last for a total of 70 years from Neumann’s death in 1993), claimed that Kate Spade sold accessories bearing Neumann's famous poppy print without authorization. While most of us know that U.S. copyright does not protect entire garments, it protects separable prints and designs that are featured on garments, and thus, gives rise to a copyright infringement action.

So, there you have it. A simple take on the incorporation of art in fashion.