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As Women24 previously reported, Chelsea Liu, an Asian-American designer, recently accused Gavin Rajah of stealing her designs on Facebook.
A second Facebook post by Liu contained a screenshot that allegedly shows Rajah threatening to contact the United States Citizenship and Immigration Services if Liu failed to remove her “malicious” Facebook posts.
Rajah has released a statement through his attorneys denying these accusations and saying that Liu’s claims are unfounded and defamatory.
The statement reads: "Gavin Rajah Atelier CC concluded a business agreement with Ms Chelsea Liu during 2015 in which certain monies were paid by her for services rendered by the corporation. As the representative of the corporation, I confirm that we complied fully with our obligations which included using images from both ranges to secure international exposure. The business relationship was unsuccessful and to date Ms Liu is still indebted to the corporation. Ms Liu instituted legal action but withdrew it last week. Had she had any basis or prospect of success she would have pursued it. She however has chosen to withdraw the legal proceedings, which the corporation defended, and rather utilise social media to defame and damage my good name and reputation.
“I outright deny the unfounded allegations. If Ms Liu believed she had a valid claim she would have pursued it through her legal representatives in South Africa, which she has not done. It is correct that I addressed an e-mail to her husband, which I did only pursuant to her malicious posts on Facebook, to inform him, as a courtesy, that should these defamatory comments not be withdrawn I would institute proceedings to protect my reputation which may affect her application for citizenship in the USA. I did not attempt to intimidate her or her family and her public comments in this regard are defamatory, unfounded and untrue.”
We spoke to Fashion Lawyer and Director of SA Fashion Law Sumaiya De’Mar about designers copying each other’s work and what the law has to say about this.
What does the law say about plagiarism amongst designers?
Technically speaking the term plagiarism cannot accurately be applied to fashion designs in South Africa, so the correct terminology would be copyright infringement or an action for ‘passing off’.
[NB. the Copyright Act sets out a wide range of creative works that are protected, and the court is yet to establish the application of such protection towards the design of a dress. However, it could be argued that the dress is a ‘work of craftsmanship’ which falls under the Act, in which case the law of copyright will apply.]
Copyright arises automatically the moment an original work is recorded in material form. The law in South Africa protects any unauthorised copy or use of the work by any other person. [This protection also extends to other countries which form part of the Berne Convention, which includes the US, UK, Australia, France, etc. as this is a treaty which South Africa is also a part of].
It should be noted however, that when two people come up with a similar design independently of each other, the law does not recognise this as infringement and protects both designs.
The courts use an objective similarity test to determine if it is a copy, i.e. substantial part of skill and effort invested by the author in the original work. The court will also take into account the issue as to whether there was access or an opportunity to copy.
The remedies include delivery of the infringing material; damages or a reasonable royalty; or an interdict preventing further infringement. The courts have the power to award additional damages where there has been a flagrant infringement of copyright.
An alternative legal action the designer who feels infringed upon (the plaintiff) can take is an action for passing off. This means the plaintiff has to prove that (1) by extensive use the product has acquired a public reputation, and (2) that the general get-up of the defendant’s product was calculated to deceive the public.
If a designer steals another designers work, how do they get away with it?
Each case needs to be considered on its own merits in a court of law and a judgement made based on the evidence.
Is there anything these other designers can do to put a stop to it?
By implementing good business practice, i.e. legally sound contracts in all areas and collaborations as risk management. This is what SA Fashion Law specialises in.
Designers also have the option of registering their designs under the Designs Act, which protects the creative aspects of their design for up to 15 years. Design rights differ from country to country, but in South Africa designs can be registered to help enforce protection.
Would they have a case and, if so, how long would it take to get to court and have a verdict brought?
In South Africa litigation is a long process and cases of protracted issues tend to be costly in terms of legal fees, however the more legally sound the contract (as mentioned above) is, the easier it is to prove or disprove a claim.
It is up to the court to decide on the case at hand, however either party can face public reputational cost if it is on-going within a public sphere and not adjudicated independently by a court of law.
