Miley Cyrus’s wardrobe (or lack thereof) caused controversy on the heels of the MTV Video Music Awards last September. The singer’s hosting stint was complete with a number of outfit changes, but her costume and those of her backup dancers in the finale are maybe the most controversial of all. According to the designers behind emerging label, Di$count Universe, they were copied.
Turns out, Cami James and Nadia Napreychikov, the design duo behind Melbourne-based Di$count Universe, said that on the heels of the awards show, they were “inundated with interview requests and tags congratulating us for designing the finale looks of the VMA awards.” Except they didn’t design any of Cyrus’s costumes. In fact, Brad Callahan aka BCalla, a New York-based designer, was responsible for the costumes at issue, in collaboration with Cyrus's stylist Simone Harouche.
So, what exactly are we looking at here? The costumes adorned with over-sized blue eye graphics, of course. That is, after all, one of Di$count Universe’s signatures – as indicated by the large number of people (incorrectly) identifying Cyrus’s costume as one originating from Di$count Universe. The Australian brand has adorned its wares (from crop tops and mini-dresses to clutches and jewelry) with this graphic since it launched in 2009. They’ve since dressed Britney Spears, Beyoncé, Iggy Azalea, M.I.A., Rita Ora, and Kimbra – just to name a few. This has all been covered quite extensively by other publications. Mashable has a great write-up on the controversy.
What no one has asked is: Why is this ok? Why is it perfectly acceptable for BCalla and co. to downright copy Di$count Universe and in requests for comment deny it and claim that the brand is not even on his radar (which we know simply isn’t true)? Also, in the same vein: Why is it ok for Nasty Gal to copy the brand, as it has done in the past? (More about that here). Why is this perfectly legal?
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 but this does little to ward off copiers.
Moreover, the other forms of protection (think: trademark and patent protection) arguably are not ideal 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 (patent protection costs thousands of dollars to achieve) and take a long time (upwards of one year) 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 are very rarely 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.