For his Spring 2015 RTW collection, Alexander Wang sent a number of so-called sneaker dresses down the runway. Wang repurposed popular tennis shoe designs – like Nike’s Flynits – into womenswear. Case in point: the electric-colored bodycon dresses. Style.com said of the collection, “These were sexy clothes that women are going to want and wear.” Vogue said Wang’s collection was “slick, glamorous, sport-driven, technically intricate, and desirable.” These rave reviews should be cause for celebration, but in our minds, they pretty much always mean one thing: copiers will be aplenty. And if there’s one thing you can always count on from Nasty Gal, it’s seizing the opportunity to make money without using any creativity.
So, up this time (since Nasty Gal does have quite a history): A pretty close copy of a bodycon frock from Alexander Wang’s Spring/Summer 2015 collection, of course.
As far as we can tell, the most anyone writing about this has done is pointed out how similar these dresses are. What hasn’t been done is any kind of legal analysis to determine if Alexander Wang has any legal recourse available to him, which is where we come in.
The best place to look for protection of Wang’s dresses is in copyright law. And the most likely place to find protection for clothing within the laws of copyright is as a “pictorial, graphic, or sculptural” work. According to U.S. Copyright Law, “’pictorial, graphic, and sculptural works’ include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” These works are only protected if, and to the extent that, the “design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Essentially, if the functional aspects of a garment are not separable from the aesthetic aspects, there will be no protection. As you might imagine, this means that most garments and accessories are afforded protection on a very limited basis, if at all.
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.’” Since it’s not very likely that that a feature on one of Wang’s bodycon dresses would somehow be physically separable without affecting the functionality of the dress as a whole, this form of separability is not helpful here.
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 particular garments is because of artistic decisions made by a designer, like what materials to use, how high the neckline should be, 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 dress, this would be extremely difficult to prove.
This is all to say that what Nasty Gal is doing might make you want to scream, but it’s not likely illegal, meaning the site can – and probably will – continue selling its knockoffs.
If ever there was a reason to say the laws in the U.S. aren’t cutting it, this would be it. Here’s to hoping that someday there will be actual legal weight behind our complaints. For now, though, the only real recourse is telling you about Nasty Gal's copycat ways and hoping you don’t spend your money there.
JENNIFER WILLIAMS is a law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently admitted to the NY State Bar. For more from Jennifer, follow her on Twitter.