Communicative Fashion under Copyright Threat? Fashion and Copyright’s Scope of Protection in the EU

Abstract EU copyright law grants strong exclusive rights to rightsholders of works of applied art, such as fashion companies. The wide scope of protection is not exclusively positive news for fashion creators if it hinders their possibilities to design products that share the same aesthetic language. This issue is particularly relevant in the fashion sector, where drawing inspiration from prior art is an essential part of the creative process and various (genuine and false) “plagiarism” scandals are commonplace. In Mio / Konektra , the Court of Justice of the European Union has introduced a “recognisability test” for copyright infringement. The Court also seemingly rejected the rule of reciprocity, according to which a low degree of originality leads to narrow protection, and vice versa. These developments could unnecessarily restrict the creative freedom of designers whose work involves commenting on and referencing prior art, as is common in the fashion sector. To ensure that fashion creators of tomorrow have some leeway, “recognisability” should be understood strictly. Additionally, the pastiche exception could offer fashion creators further flexibility. This article argues that striking a fair balance between protecting the fashion creators of the past and those of the future requires both (i) limiting the scope of reproduction right, and (ii) maintaining reasonable exceptions and limitations to ensure that designers can execute their freedom of expression. The article also argues that the Court did not entirely eliminate the concept of reciprocity from EU copyright law.