Even though Kate Middleton’s wedding dress was designed by Sarah Burton for the British fashion house of Alexander McQueen, the lace was made by the renowned French manufacturer Solstiss, in the small town of Caudry, in Northern France.

It was that very same manufacturer that supplied the lace to Helen Rose, the famous Metro-Goldwin-Mayer costume designer, when she created Grace Kelly’s wedding dress back in 1956.  

The difference, however, is that the provisions of French law that now govern the protection of copyright were only adopted on March 11, 1957, which means that the lace on Grace Kelly’s wedding dress does not benefit from the same protection under French law as the more recent Solstiss production for this other, no less famous, Princess.

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Under French law, the shape of a wedding dress, the design of a lace pattern or the print of a fabric can indeed be protected by copyright (“droit d’auteur”) and also by the rules on industrial designs (“dessins et modèles”)2, if certain conditions are met.  

Protection by Copyright Law

According to article L. 112-2 of the French Intellectual Property Code, “works of applied art” and “creations of the seasonal industries of garments and costumes” can be considered as works of the mind and can therefore be protected by copyright.  

The protection of copyright is automatic, provided the work of applied art is considered original.

In the case of a wedding dress or a lace pattern, it would therefore be necessary to establish that the elements combined by the designer or the manufacturer to create the dress or the lace pattern were set out in such a particular way that the dress or the lace pattern should be considered original.

French case law has indeed ruled that a wedding dress, constituted by the combination of different elements, should be considered original and therefore be protected by copyright, as the overall aspect of the creation differs from other dresses and as it is clearly the output of a creative process bearing the mark of its designer’s personality.3

Under French law, the shape of a wedding dress, the design of a lace pattern or the print of a fabric can indeed be protected by copyright...  

In addition, French case law, interestingly enough, established by a case in which Solstiss itself was a party, rules that a lace producer can seek copyright protection for its creations as, in the aforementioned case, the lace pattern was considered original even though the infringing design was reproduced on a different type of fabric.4

Although no publication or registration is required to secure copyright protection under French law, it is recommended that the designer or manufacturer lodges his creation in a Soleau envelope with the French National Institute of Industrial Property (INPI) or keeps track of its creation process in order to be able to provide a precise date of creation in the event that he is required to establish his rights.  

The author of a work of applied arts has both a patrimonial right and a moral right to his creation. His patrimonial right endures for the life of the author plus an additional 70 year period after the author’s death, whereas his moral right is perpetual.

In the case of infringement of copyright, the author of a work of applied arts can bring the case in front of French Criminal or Civil Courts5, depending on whether he wants to obtain damages or to have the infringer held criminally liable. The criminal sanctions which can be imposed can include up to three years imprisonment and/or €300,000, and in some cases, even up to five years imprisonment and/or €500,000 if the offense was committed by an organized group.

Industries such as the fashion industry, which frequently renew their collections, can benefit from simplified filing formalities.  

Protection by Industrial Design Law

The French Intellectual Property Code grants specific protection to industrial designs in the shape of either three-dimensional models (“modèles”) or two-dimensional drawings (“dessins”).

An industrial design can, however, only be protected under French law if it is new and has an individual character.6 An industrial design is considered new if, on the date of filing the application for its registration or on the alleged priority date, no identical design has been disclosed.

In addition, an industrial design is considered to have an individual character if the overall visual impression it produces on the informed observer differs from that produced by any other design disclosed before the date of the filing of the application for its registration or before the alleged priority date.

Protection of an industrial design under French law requires its registration with the French INPI, when the place of residence or the registered office of the applicant is situated in Paris or outside France. Where the place of residence or the registered office of the applicant is situated in France but outside Paris, the applicant may choose to either file his application for registration with the INPI or with the local Commercial Court.

Industries such as the fashion industry, which frequently renew their collections, can benefit from simplified filing formalities.

Protection takes effect, if registration is granted, from the date of filing the application for a period of five years, which may be extended for successive periods of five years up to a maximum limit of twenty-five years.8  

The infringement of a registered industrial design can be brought before French Criminal or Civil Courts and can lead to the same criminal sanctions as those applicable in case of infringement of copyright.

It should be noted that France is the only country in the European Union where the protection of both copyright and industrial design laws can be combined in respect of the same creation, provided of course such creation meets the requirements of both regimes. This principle is recognized on the basis of the theory of Art Unity (“Unité de l’Art”) and allows the combination of the protection afforded by both articles L.112-19 and L. 513-210 of the French Intellectual Property Code.

In a seasonal sector like the fashion industry, it is very rare for designers in French fashion houses to seek the protection of French industrial design law for fear of failing the novelty test required under this regime.

Some wedding dresses have, however, been successfully registered at the INPI, for instance this exclusive creation for a handicapped bride in a wheelchair.11

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Whether or not Kate Middleton’s wedding dress would have been eligible for registration at the INPI will remain a mystery, as the INPI has confirmed no application for registration was filed by either Sarah Burton or the British fashion house of Alexander McQueen!