Bi-coastal creative duo, Moriah Carlson, who hails from Brooklyn, NY, and Alice Wu, of Oakland, CA, design together under the Feral Childe brand, and they are the latest designers to strike back at what they call "blatant infringement" by Forever 21. The sustainable fashion brand, through its attorneys at Doniger/Burroughs APC, has filed a copyright infringement lawsuit against Forever 21 in Federal Court in Los Angeles, alleging that Forever 21 has copied one of Feral Childe’s original hand-created designs, and created and sold apparel bearing this design.
Given the blatant nature of the copying at hand, this lawsuit hardly comes as a surprise. However, lawsuits in connection with copying are actually quite rare. According to our friends over at Jezebel, "In addition to its history of labor violations, Forever 21 has been sued more than 50 times for allegedly stealing the work of other designers and passing it off as their own." These lawsuits have come from big brands like Anna Sui and Diane von Furstenberg to smaller, independent designers like Trovata, Foley + Corinna, and 3.1 Phillip Lim.
While 50 lawsuits may seem like a lot, a walk through a Forever 21 store will prove that it isn't. The brand copies A LOT. As such, Feral Childe's lawsuit is an interesting exception because copying is largely legal in the United States. Put simply, copyright law is not really a friend to fashion. This is a blanket statement but it is quite true, nonetheless. Because copyright law does not protect useful things, such as clothing and accessories, it provides little protection for those things in their entirety. Elements of a garment, such as a print that covers it, may be protected and this is why the Feral Childe designers have a case.
Moreover, the other forms of protection (think: trademark and patent protection) just aren’t that effective for fashion designs. Trademark law only protects a designer’s name or logo – with some exceptions under the doctrine of trade dress but this is relatively rare. Patent protection – namely, design patents – is not terribly useful for designers because they are expensive and take a long time (upwards of two years) to apply. That’s too long in a business as seasonal as fashion. Taken together, this is why fast fashion retailers make hundreds of millions of dollars by copying high fashion designs and only very, very, very rarely are sued for doing so.
It is different in other countries – namely, in the US’s international fashion competitor countries. Copyright protection in the UK is not terribly dissimilar from that in the United States. However, the European Designs Directive introduced a unified system of industrial design rights for both registered and unregistered designs throughout the European Union. This allows for the protection of garments and accessories in their entirety. Due to its history as the home of innovation in terms of high fashion, it is not surprising that France enjoys the most extensive and longstanding legal rights in connection with fashion designs. The country’s copyright system provides protection for garments and accessories. The same type of protection also applies to Italian designs.