THE FASHION LAW EXCLUSIVE - In one of the rare instances in which a designer might have the opportunity to sue in connection with copying, consider Cihuah. The celebrated Mexican brand, which shows during Mexico Fashion Week and has been featured in Vogue, Harper’s Bazaar, InStyle, Elle and other Mexico-specific publications, recently took on a classic Raf Simons design. And by “took on,” we mean blatantly copied.
For its Spring/Summer 2015 menswear collection, the Mexico City-based brand, which is under the creative direction of Vanessa Guckel and which is known for its use of “geometry, proportion, aesthetics, construction-deconstruction, symmetry-asymmetry, balance-imbalance-inspired designs,” decided to simply recreate a shirt from Raf Simon’s Fall/Winter 2003 collection, entitled, “Closer" (which Simons actually derived from an Oskar Schlemmer work dating back to the 1920's - which suggests that the work is likely in the public domain as of late).
Copying in fashion is not news; in fact, it is an extremely common occurrence. The business of fast fashion brands, such as Forever 21, H&M, Zara, and Nasty Gal, decent entirely on copying on runway designs. However, identifying examples of potential copyright infringement in fashion is often a difficult task, as copyright protection in the U.S. does not extend to the majority of useful articles (think: clothing and accessories, with some exceptions) in their entirety. As such, when we come across hypothetical cases, we try to point them out.
While copyright law does, in fact, provides very limited protection for most clothing designs, when an original print or pattern is embodied in a garment or an accessory, copyright law quite often applies via the category of Pictorial, Graphic or Sculptural (“PGS”) Works. Given the connection with Schlemmer's work, there is a chance that a court would find that Simons's print does not meet the originality requirement. However, if we put that aside for a moment, because Simons’s F/W 2003 shirt can exist without the face print on it (aka the print is not functionally required), the separability requirement is met and the print itself can be protected by copyright law. Again, this assumes that Simons’s print is original. [Note: Belgian copyright law would technically apply in this instance, as Simons’s brand is based there and governed by Belgian law].
Why does this matter? Well, it means that Cihuah’s shirt, which consist of a near exact – if not completely exact – replica of the standout face print that appears on at least two shirts from Simons’s F/W 2003 collection – would likely amount to copyright infringement if the face print at issue were not in the public domain and thus, fair game for all. Save for the potential issue with the design itself being derived from a Bauhus one, Simons’s eponymous label could take legal action against Cihuah in connection with the design. Simons likely will not and has not filed suit to date, but it is interesting to note that Cihuah’s shirt has not been made available for sale …
UPDATE (4/20/2016): According to a statement from Cihuah, the similarity at issue is the result of a "coincidence" and it will not made the sweater available for sale.