ART AND FASHION – A SYMBIOSIS FROM A LEGAL PERSPECTIVE.

The connection between fashion and art is deeply rooted and produces both iconic collections and critical, aesthetically sophisticated works of art. This creative alliance often addresses socially relevant aspects such as consumption versus sustainability, migration and identity, as well as the relationship between aesthetics and ethics.

It is therefore not uncommon for fashion houses to commission artists, for example to design video or room installations for fashion shows or for the artistic realisation of photography and styling. Such collaborations require a contractual arrangement on an equal footing: while the fashion houses want to enable new works with their financial support and benefit from their exploitation, the artists are also keen to exploit their works and realise new projects based on them.

1. Fashion as an artwork?

Where is the boundary between fashion and art today (from a legal perspective)? And can fashion be protected as a work of fine art within the meaning of § 3 UrhG?

Among other things, the Copyright Act protects works of visual art and grants their creators exclusive rights. §  3 UrhG does not specifically define what this means, but explicitly lists photographs, architecture and applied art as eligible for protection. This raises the question of whether fashion designs can fall under the category of ‘applied art’.

A protectable work must be the result of creative, intellectual activity and be objectively recognisable as a work of art. The fact that a work has a practical use does not exclude its protectability under copyright law – the concept of a work is purpose-neutral.

Furniture or costumes, for example, enjoy protection as works of fine art, which suggests that certain items of clothing should also be granted this protection. In legal terms, however, a clear distinction must be made between mere clothing and artistic fashion. For example, OGH did not grant protection to a collection of ski and hiking boots, as these were ‘objectively not to be regarded as works of art when viewed as a whole’ (OGH 19.09.1995, 4 Ob 1060/95).

It therefore remains a case-by-case assessment. The EuGH also made such an assessment in preliminary ruling proceedings (EuGH 12.09.2019, C-683/17): The aesthetic effect of G-Star Raw’s models is the result of a subjective perception of beauty on the part of the respective observer. Therefore, there was no subject matter that could be identified with sufficient accuracy and objectivity to be protected by copyright.

In contrast, in another case, the Spanish Supreme Court recognised copyright protection for the designs of the Desigual brand. These were ‘artistic works’ and imitation products were therefore ‘copyright infringing objects’ (https://blogip.garrigues.com/en/intellectual-property/the-protection-of-fashion-and-applied-art-under-criminal-law-the-supreme-court-rules-on-the-desigual-case).

2. Collaborations: Artistic synergies and shared authorship

Collaborations between the art and fashion worlds often emphasise shared values and aesthetic visions. They often lead to joint authorship – i.e. shared copyright – of a work.

One impressive example is Louis Vuitton’s repeated collaboration with Yayoi Kusama. This not only led to new, popular collections, but also to a completely new art-historical reception of the Japanese artist, as demonstrated by numerous international exhibitions.

Ideally, such partnerships are based on well-founded contracts that include provisions on exclusivity, licence duration, quality assurance, circulation of the collections and rights/obligations.

3. Contractual practice in reality: between ideal and everyday reality

Although theory and specialist literature emphasise the need for balanced contracts in collaborations between fashion and art, practice often shows a different picture. Especially when artists are less established or financially dependent on a commission, they find themselves in a structurally weaker negotiating position. Framework conditions are often only clarified at a late stage or remain insufficiently documented. A typical consequence: uncertainties regarding the use of the works, for example with regard to later utilisation, international rights or digital re-use.

In these cases in particular, a solid contract is essential. Although a verbal contract is just as valid as a written one, it is usually not possible to prove it.

The recommendation is therefore: written agreements, a clear definition of use, and ideally legal advice on both sides – even if the reality does not always reflect this.

4. Exhaustion: limits of distribution

A central point in copyright law is the exhaustion of the distribution right pursuant to § 16 (3) UrhG. Accordingly, the exclusive distribution right of the author ends as soon as a work has been placed on the market within the EU/EEA with the author’s consent. This enables legally secure trading on the secondary market.

The following applies: only the distribution right to the individual work expires when it is placed on the market, but not the reproduction right or other exploitation rights.

If there is no licence to use works of art on clothing, for example, the depiction is unlawful. The artist can demand an injunction, removal, a licence fee and even compensation.

This is what happened in the case of artist Joan Mitchell: Louis Vuitton photographed an advertising campaign in front of one of her works in 2023 without the artist’s consent. The Joan Mitchell Foundation demanded the removal of the campaign, information on its distribution and a public apology (https://fashionandlaw.de/joan-mitchell-foundation-mahnt-louis-vuitton-ab).

Museums and galleries are also increasingly serving as backdrops for fashion campaigns, which entails additional legal requirements – including licence agreements with artists and institutions as well as compliance with house rules and regulations. Among other things, photography times, technical resources and security costs must be clearly regulated.

5. Cultural appropriation – a legal and ethical field of tension

One aspect that is increasingly being discussed is cultural appropriation by fashion designers when they use designs from indigenous cultures without permission. Mexico has already reacted to this with legislation: The new law stipulates that the indigenous community must give its consent to the reproduction of its elements/patterns outside the community. However, the international enforceability of such regulations remains questionable. However, the concept of ‘collective intellectual property’, which is still unknown in Europe, should be emphasised.

Regardless of legal regulations, a respectful approach to cultural elements is always the appropriate way forward: involving indigenous communities by explicitly seeking their consent is always the best and most respectful way for fashion designers.

6. Plagiarism or inspiration? The difficult distinction

Another legally and ethically important area is the distinction between legitimate artistic inspiration and plagiarising appropriation. In the fashion industry, which thrives on trends and quotes, this line is particularly difficult to draw.

While copyright law only protects specific forms of expression and ideas are generally free, too close an approximation of an existing work can certainly constitute an infringement. The decisive factor here is always whether a ‘significant part’ of the original has been adopted and whether this is done in a way that negates ‘own intellectual creation’.

Legally, such cases are often tricky. Here, too, a case-by-case assessment is very important. For artists, it is not only a legal issue, but also an emotional one.