There are several avenues we utilize to tell us what’s going on in fashion law. One is looking at websites that we know love to take great designs and create a cheaper (in price and look) version. Sites like Nasty Gal, Forever 21, and Zara frequently make the list, and we don’t usually come up empty-handed, so to speak. One example we found recently is a rather familiar pair of black pumps on sale at Forever 21 called the City-Chic D'Orsay Pumps, which retail for a mere $36.80. In our opinion, the fast fashion retailer’s offering is far too similar to Mary-Kate and Ashley Olsen's Elizabeth and James Sand d'Orsay Pumps to be coincidental
You may remember the Elizabeth and James pump, which retails for $325, from the brand’s Fall 2012 RTW collection. They are made from cowhide leather and look like the kind of understated pump that would complement nearly any outfit. Forever 21 is selling a pretty blatant “faux leather” copy and yet, Forever 21’s actions are probably within the law. Deplorable? Yes, but not against the law. Completely devoid of creativity? Of course, but not illegal.
The reason is that copyright law, which along with design patents, is the area of law that would apply to the design of a shoe (unless we’re talking about something like the Louboutin red sole, which is protected by trademark law). Copyright law does not protect items when design features aren’t separable from functional aspects. (Example: A few unique design aspects on a shoe typically can’t be separated from their primary function, to protect and cover your feet.) This means that a lot of clothing items and accessories don’t make the cut.
Courts have defined two types of separability: physical and conceptual. In Eliya, Inc. v. Kohl’s Department Stores, the District Court of the Southern District of New York said of physical separability: “A feature of a useful article is physically separable if, like an artistic base of a lamp, the feature could actually be physically separated from the useful article and be ‘capable of existing independently as a work of art.’” There’s very minimal hope that a feature on a shoe would somehow be physically separable without affecting a shoe’s functionality. For example, removing the Elizabeth and James notched, button strap that fastens to one side would likely impact the utility of the shoe.
So, on to conceptual separability. In Eliya, Inc, the court provides the following guidance: “the mere act of aesthetic decisionmaking does not render the result of that decisionmaking conceptually separable. Rather, for a design element to be conceptually separable, it must be the result of aesthetic decisionmaking that is independent of functional considerations.” Sure, the whole reason we love one shoe over the next is because of artistic decisions made by a designer like how a strap should look or what type of stitching to use, but these decisions are not going to be considered conceptually separable unless they were made without any consideration whatsoever of the functionality. Basically, for something like a shoe, this would be extremely difficult to prove.
This means that unless Forever 21 uses the Elizabeth and James trademark on the City-Chic pump, which is not the case, the practice of stealing the idea from true designers goes unpunished. This is an unfortunate truth for many designers and consumers alike. The only real recourse, until the laws change, is this: writing about it to make you, TFL readers, aware.
Jennifer Williams is a recent law student grad, who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, visit her blog, StartFashionPause, or follow her on Twitter.