Fashion designer, activist and renowned maverick Vivienne Westwood is one of the stars on the fashion sky. Her shows are legendary, her designs revolutionary: she patented the platform ‘pedestal’ shoe, created punk and is a leading human rights activist.

Founding punk

One of her most famous – and controversial – designs, and the one we will talk about today, is emblazoned with a bold red Nazi swastika, an inverted image of Christ on the cross, the word “DESTROY,” and Sex Pistols lyrics. The 1977 shirt epitomised Westwood and partner Malcolm McLaren’s trailblazing brand of punk politics, a way to stand up to dictators around the world. More broadly, it was a means of challenging the older generation, of saying “We don’t accept your values or your taboos, and you’re all fascists.” The shirt was sold at their iconic SEX store, later called ‘Seditionaries’ and now ‘World’s End’, on 430 King’s Road in Chelsea.

Westwood was one of the architects of the punk fashion phenomenon of the 1970s. Her’s and McLaren’s (who also managed the Sex Pistols) store quickly became a meeting place for early members of the London punk scene. Later on, her activism turned to the environment and civil rights issues. Her motto ‘buy less, choose smart, use long’ fits perfectly with the emerging modern consensus among designers, that fashion has to become ethical and sustainable or it will crash and burn.

The chuzpe needed to put a fascist symbol on clothes aside, the question of legal protection for such clothes like this is another. How could Westwood defend herself against product piracy? Is IP protection for works utilising symbols like this possible? Should it be?

Morality laws vs. rights of expression

Most IP laws have special clauses concerning objects who are “immoral” or are detrimental to “public order”. That is because IP offices should not be expected to publish offensive material in the course of proceedings and thereby give the appearance of official approval. IP laws must neither trivialise content which is contrary to public order nor give it a stage, make it customary, i.e. perpetuate it and accustom the public to it , especially since individuals often cannot avoid it in the field of advertising.

Such laws aim to protect people from grossly denigrating and upsetting imagery and other content, but can also be used to censor. In the past, morality laws have been used to infringe on artists’ fundamental rights and many a court battle has been fought over them. The prohibition to register generally disparaging terms is contrary to the freedom of opinion and information. Therefore, only substantial infringements of “public order” and “common decency” suffice.

What is “public order”?

Public order means the fundamental principles of a legal system, in the case of both member states’ and EU IP law, the different national legal systems. For example, human dignity (Art. 1 sec. 1 of the German Basic Law) and other fundamental rights have such a high standing, that they have to be defended even in the realm of art. A violation can therefore only be affirmed if a design has a severely denigrating, politically or religiously discriminatory or inciting effect with regard to one’s own or a foreign state, state symbols, and institutions, ethnic groups, population groups, one’s own religion or foreign religions

Offending common decency 101

In turn, an offence against common decency is committed if the design is likely to cause significant damage to the perception of the target public, for example by being morally, politically or religiously offensive or degrading, or if it constitutes a gross infringement of taste. The infringements must be of an impacting nature. Bad taste, a sexual reference as such, some embarrassment or offensiveness for a rather small number of people is regularly not sufficient to give rise to a complaint. On the other hand, designs which are degrading after representation or use, degrading to the object, and which intolerably violate the sense of shame and morality can be excluded from protection, as well as grossly discriminatory, defamatory, violence glorifying, blasphemous designs and such designs which bring the impermissible to the fore in a lurid, grossly obtrusive manner.

From trademarking the Dalai Lama to Goethe

If someone violates criminal laws with a trademark registration, the latter will be denied. Westwood rightly would have no chance to register a trademark involving the swastika sign or any other Nazi imagery in Germany, as that is forbidden. Certainly, her use of the symbol is not an endorsement of Nazi values, but a declaration of war against fascism and bigotry in society. Nevertheless, trademark offices would deny registration so not to give legal protection to it. Symbols standing for war and genocide must never be condoned by the law. Other examples of denied registrations are gross sexual phrases or expletives. While it is arguable, that the public didn’t have a particular problem with the movies’ title, according to the EU General Court, the German Patent and Trademark Office justly denied the film “Fack Ju Göhte” legal protection. Similarly, German courts denied protection for word marks like “Dalai Lama” and “Massacre”.

No chance of protection for Vivienne Westwood here.

Designs may be tasteless, but not denigrating

It has no bearing on design protection, if a registered design can be deemed tasteless. Design law is part of industrial property law and doesn’t subject a design to “aesthetic quality control”. IP offices, however regularly deny registration for designs which are degrading to ethnicities or religions. For example, the German Federal Patent Court confirmed a denial of registration for a ban sign depicting a mosque. As design protection is granted through an act of the state, the state’s commitment to neutrality in regards to religions or opinions has to be enforced.

So Westwood couldn’t register her shirt design as well.

Copyright law is more generous

At least copyright law is rather lenient. It has no effect on copyright protection if the author violates the rights of third parties in the creation of the work or if the work contains content prohibited under non-copyright law, e.g. because it violates common decency. A work that has insulting content or is inflammatory is also protected by copyright, which does not mean that copyright protection has any effect on the author’s possible criminal liability. The author may, however, be restricted by other statutory provisions in exercising certain copyright-related powers in the work with prohibited content. The dissemination of offensive content may, for example, be opposed by a tortious injunction of the person concerned.

Likewise, copyright for a design is not affected by a denied registration of industrial property pursuant to immorality clauses. Therefore, Vivienne Westwood does indeed hold copyright for her shirt. There are some legal scholars who oppose this precisely because the differing attitudes of IP laws to “morality” leads to contradicting results. At least in the EU, where copyright is not subjected to a registration process, copyright protection can be attributed to missing involvement of the state.

So the answer is: they can make it work

Initially, we asked the question, whether punk and IP law can ever fit together. The answer is: kind of. They can make it work. Nevertheless, designers who – after deliberating wether they really want to use certain symbols like a swastika – choose to go an unconventional route in their art and by disseminating their views, have to be aware of how to protect their designs. While most artists won’t forgo release and sale of such a design, deciding on which available options should be pursued in cases of infringement. While trademark and design law likely won’t be much help in some cases, copyright law is always a good option. Furthermore, if enforcing IP against plagiarisms, unfair competition law offers another venue. Last, but certainly not least, criminal law still is of high relevance in the realm of unconventional and political art.

Image: TASCHEN/ Norma Moricea. Design by Vivienne Westwood.