It is only a few years ago that the industry realised the importance of legal counsel in fashion. And locally Sumaiya De`Mar is leading the pack with her SA Fashion Law firm.
Fashion Law came in and even translated into a degree of its own at Fordham University just a few years ago. This proposition became particularly attractive in an industry that always has matches of who stole whose design.
Without guidance, fashion businesses are exposed to challenges like copyright infringement, which is the most common. Seeing the need for South African fashion brands and manufacturers to be protected, is the logic behind Sumaiya De’Mar establishing SA Fashion Law. The name is self-explanatory, however the seriousness of being guided by the law has been overlooked by many, who have used less business discretion and rode on passion alone. De’Mar comes in with the support of a law degree and experience having worked at the Cape Town Fashion Council: drawing up, reviewing and negotiating contracts for those in fashion. She’s also facilitated development workshops for those pursuing new business ventures, she’s adequately equipped and runs her business in Green Point, Cape Town. In one of two parts of our interview, she answers a few question, de-mystifying fashion law and guides in a few scenarios.
What is fashion law?
• Fashion law is a combination of several different legal disciplines. At the heart of fashion law lies intellectual property law (which deals with copyright, trademarks, patents and design law). Fundamental issues also include business and contracts such as compliance with South African Acts and policies which every business, especially start-ups, need to comply with.
• Subcategories in fashion law range from labour law; real estate; marketing and manufacturing. Fashion law also addresses the issues of ethics and sustainability e.g. safe labour practices.
• Fashion law also extends to related industries such as photography, modelling, film, media, etc.
If you have just started a fashion brand, what would be the three first things to get right legally so to not get your fingers burnt?
• In every business you need to disclose confidential information to someone else, whether it is to acquire technical assistance, financial assistance, or marketing advice, you have to be responsible in safeguarding your rights. Especially when pitching concepts, designs, etc. to potential partners, one does not want them stealing or copying one’s work. The best way to protect against this kind of thing is to get every person/company to sign a Confidentiality and Non-Disclosure Agreement. By having this solid legal document in place, it gives you the upper hand should things go wrong.
• Entrepreneurs shouldn’t delay formalising their legal agreements. They should have sound legal contracts drawn up from the beginning, i.e. Partnership Agreements, Employment Contracts, Consignment Agreements, Manufacturing Agreements, Leases, Service Level Agreements, etc.
• Registering your business: Having a registered business name makes a difference when you approach clients and partners, especially when it comes to funding. Businesses that wish to transact with government and the formal sector, or that wish to access certain types of government support, are generally required to be registered. The most important reason to register your business name is to prevent anyone else from using it. After you’ve spent months or years building your brand, the last thing you want is someone else to come into the market and start using the same or a very similar name.
If you feel as a designer that another designer or even chain retailer has stolen from your creative output, where should you start and what evidence would hold for a case?
• Although you don’t need to formally register your design to acquire copyright, keeping a good record of what you have designed is critical.
• As the creator of your work, you have a right to copyright protection. You do not need to register it. It arises automatically as long as your work is original and is recorded in a material form, for example a photograph. This protects your work from being sold, reproduced or copied without your permission.
• If you have been a victim of copyright infringement, you have a right to claim damages or a reasonable royalty, or get an interdict or demand delivery of the infringing copies. Sufficient proof is required that your work was indeed original and that your rights were in fact infringed.