Authorship and re-equilibration of the dynamics in the fashion industry: can the DSM Directive be the leader of a new regime for designers?

Abstract

Fashion designers’ persistent struggle to establish their author status is marked not only by external discrimination but also by internal industry biases. Historically, the alleged cultural elitism of copyright law has been the main hurdle for granting them this title. However, recent rulings of the Court of Justice of the European Union have dismantled any meaningful margin for discriminatory treatment across different art forms. With the clear acknowledgement of fashion designs as copyright-protectable subject matter, fashion designers can now proudly wear the badge of ‘authors’. But what does this newfound title bear, in practice, in a sector where authorship is built on an unjust foundation, on the grounds of the fashion industry’s discreditable hierarchy? What is the current fate of their moral and economic rights and how can the mechanisms provided to authors by Directive 2019/790 (DSM Directive) be leveraged to re-equilibrate the dynamics of the industry? These are, inter alia, the questions this article—ambitiously—attempts to explore.