The rise of the reliance on the court of public opinion is proving a popular topic of discussion for fashion sites. On the heels of WWD's recent article discussing the growing movement of social shaming in connection with design knockoffs, Mashable has taken on the topic, as well, in an article entitled, “How social media shaming controls fashion copycats."
Given the widespread readership of such a website, I think it is important to correct some of the misstatements of law and fact contained in the aforementioned article, if for no other reason than for the sake of readers who may have actually relied on the article for accurate descriptions of the law and depicts of the inner-workings of the fashion industry.
Before I do, however, I must say that it is thrilling to see the topic of law discussed on such a mainstream level. Design piracy and intellectual property infringement are important issues and I applaud Mashable for attempting to shed light on them in connection with the larger trend of fashion blogs covering such instances. Having said that, the dissemination of legally-sound information by seemingly legitimate publications is absolutely crucial, especially when you're actually discussing the law.
With that out of the way, let's look to the article and a few of its most glaringly erroneous assertions. Let's start at the beginning, where columnist David Yi describes a recent bout of shaming brought on by former Reformation design director, Sarah Studinger, who called out the brand for copying. Yi writes: "Though Studinger couldn't do much about the copy since U.S. laws don't yet protect designers, social media users did attempt to blast Reformation." Not so fast. Not only are there laws in place in the U.S. to protect designers, there are a number of them. Yes, copyright law (in the U.S.) does not tend to protect designs in their entirety. That does not mean that designers are left unprotected, though, as Mr. Yi asserts. Read on ...
Copyright law, for the uninitiated, is a form of legal protection provided for original works of "authorship." Don't be misled by the language here, which is derived from the U.S. Constitution. Works of authorship include anything from books and movies to music and sculptures. And fashion designs, as well, to an extent. Such protection is extended to original works fixed in a tangible medium. The song lyrics must be written down, the photo taken, the screenplay drafted, etc. to fulfill the "tangible medium" requirement.
What Mr. Yi seems to pick up on (and which he briefly alludes to - kind of) is the fact that copyright law does not protect useful articles in their entirety. That fact alone does not automatically remove garments and accessories, which the law deems to be utilitarian in nature, from the equation. It does, however, place an additional requirement on them: a separability requirement.
If a useful design is going to be subject to copyright protection, it's useful elements must be separated (either physically or conceptually, depending on what jurisdiction we are in) from the purely creative ones. An easy example is an original print or visual design that appears on a dress or t-shirt. It can exist separately from the t-shirt or dress. The function of the shirt/dress is not dependent on that design, etc. As such, the design, itself, will be protected by copyright law. The t-shirt/dress design will not be. If we consider this scenario and many just like it, which provide some protection for designs (as we've seen in lawsuits filed against Forever 21, in particular), with a recent ruling by the Sixth Circuit, which held that cheerleading uniforms may be protected by copyright law, it is plainly inaccurate to say that copyright law does not provide protection for garments and fashion designs. The fact of the matter is that the protection provided by copyright is arguably not the ideal form.
The same can be said of the very real protections that trademark law and patent law provide for fashion designs.
One sect of trademark law - called trade dress - provides rather significant protections for fashion designers. Trade dress protects the overall commercial image of a product that indicates or identifies the source of the product and distinguishes it from those of others. It may include the design of a product, itself. This is exactly the law upon which Mansur Gavriel relied in order to file suit against a number of copyist for manufacturing and selling lookalikes of its famed bucket bag.
The broad definition of trade dress further suggests that it may be used to protect the entirety of a garment. While this has proven difficult, as indicated by the Walmart v. Samara Bros. case, it is not impossible, and with the rise in accessibility in terms of the fashion industry and its most covetable items, I do not think it is a stretch to say we may already be witnessing the potential expansion of the doctrine to garments. When the protection afforded to Lululemon’s yoga clothes by way of design patents run out, it is likely that we will see the company asserting trade dress rights to counter copying efforts.
And still yet, there are design patents, which protect the ornamental design of a functional item, such as a pair of pants or a handbag. Levi’s has a number of design patents for its jeans, for example. Celine has a growing number for its bags. Jimmy Choo for its shoes. Design patents serve as a very powerful for of protection for garments and accessories alike, and yet again, serve as proof that designers are given protection.
As previously indicated, the issue is not that designers lack protection. The point is that they do not have ideal protection. Design patents come with limitations to an extent; they often prove to be a time-consuming and costly form of protection to obtain. The turnaround time – or the pendency, the term that refers to the time taken by a patent examiner between filing and issuance of the design patent – tends to be about 18 months, with some taking quite a bit longer.
Thus, instead of engaging with substance (perhaps by arguing that the existing legal protections offered for designs are out of touch with the needs of the fashion industry), Mashable’s article chooses to misstate the law and then run with that misinterpretation of it.
Towards the end of the article is where things really begin to drop off: "Now that we have social media, brands can't just get away with [copying],” per Mashable, an assertion that is, for lack of a better word, silly because brands are getting away with copying. In fact, they’re getting away with it every single day, and making billions of dollars from it, regardless of the practice of social shaming. What Mashable does here is vastly overstate the actual results of social media shaming.
Sure, Chanel has taken the high road when it has been called out for copying, likely because it does not want to be likened to mass market retailers with their flagrant and unapologetic approach to design piracy, a comparison that would taint its brand identity (and more importantly, its bottom line). Athleta similarly pulled a style of yoga pants recently when fellow athletic wear brand, K Deer, called them out for copying. I am here to tell you that these are exceptions. It is extremely rare for brand to pull a garment or accessory following social shaming in connection with copying.
Not only are these two instances exceptions to the rule – as virtually all mass market brands tend to shrug their shoulders and keep on selling when they are called out for copying – the Chanel and Athleta instances are simply not demonstrative of the problem that Mashable is attempting to highlight. That is because the vast majority of copying does not originate from similarly situated brands, it comes from fast fashion brands.
For instance, Yi quotes Eric Wilson, fashion news director of InStyle, who says, “Not only is [copying] destroying creativity, [copies] are undercutting the industry.” This quote alone is problematic in its own right because copying is not destroying creativity – that is simply not one of the valid arguments in the push for more widespread protection for garments and accessories as a whole. Instead, the argument is that such copying is destroying (or better yet, hindering) brands’ ability to profit off of their own designs and to form cohesive mass-market collaborations based on such designs after the fact.
But I digress, the problem with Yi’s argument and thus, the premise of his entire article is that social shaming does NOT control fashion copycats. This is because the copycats, the truly problematic ones, the ones that the industry is referring to when they talk about "copycats", the one’s whose business models depend almost entirely on the copying of others’ designs – as distinct from Chanel, which has been called out for copying a grand total of 3 times or so – are almost entirely unaffected by social shaming. Unlike Chanel and other high fashion brands - the ones who are most susceptible to the effects of bad press - fast fashion retailers, the REAL copycats, do not have stunning reputations based on quality and originality to uphold! Those are things for which fast fashion retailers are simply not known. They are known for copying. That’s their thing, and so, when they are called out for copying, it tends to be nothing more than business as usual.
This is why when designers and/or bloggers take to their social media accounts to expose such copying, not only do fast fashion retailers NOT remove the garment or accessory at issue (and I know this because I have dedicated a number of articles to this exact practice), the vast majority of consumers are NOT deterred. And that should not be surprising.
Sure, for those of us who care about the dirty practices of fast fashion retailers and have the resources and awareness that allow us to be more considered in our consumption habits, such articles provide interesting information that we are willing and able to act upon. However, for those who maintain very limited budgets and cannot afford a runway garment and want an affordable version, such articles are not alarming. Consumers turn to Nasty Gal for copies; they similarly expect copies from Forever 21, H&M, Topshop and Mango. And if these retailers were to respond to social shaming by pulling the items in question, they wouldn’t have anything left to sell.
So, while, yes, Mashable, you have picked up on a relevant practice in the industry (I applaude you for this), and while, yes, some brands – almost exclusively ones with something to lose (like esteemed high fashion house Chanel or like happy, healthy women-friendly Athleta) – have taken such social shaming to heart, that is simply not the overwhelming response. Let’s not give too much weight to a handful of exceptions paired with a misunderstood statement of law and get ahead of ourselves like Mashable and its sources have.
* This article was initially published in March 2016.