Nasty Gal, is at it again. This time, the Los Angeles-based company (with the help of supplier, Reverse) is selling copies of the works of independent Australian label and fellow online retailer, Di$count Universe. The garments at issue: Di$count's hand-sequined All Seeing Eye crop top vs. Reverse's Eye Candy crop top (stocked by Nasty Gal) AND Di$count's Bones skirt vs. Reverse's X Ray skirt (also stocked by Nasty Gal). And Nadia Napreychikov and Cami James, the founders of Di$count, are not pleased. They have taken to their Facebook and Instagram accounts slamming the retailer with some choice words.
So, who do we blame in this situation? The supplier and the retailer. Reverse (the supplier) is to blame for copying Di$count's designs and Nasty Gal (the retailer) is to blame for consistently selling design pirated goods. Due to the recurring nature of copies, trademark infringing and copyright infringing goods on Nasty Gal's site, it is safe to say that the presence of these copies on the site is not a coincidence.
So, what's the case here? Well, Di$count's designs may be eligible for copyright protection. While the vast majority of garments are not protected by copyright law, when garments are adorned by original designs that may be "separated" from the garments themselves, such as the eye and the bones designs here, they may be protected as Pictorial, Sculptural or Graphic works under copyright law in the U.S., much like the Givenchy Rottweiler image. It is difficult to say for sure whether Di$count's designs are protectable here based on the originality requirement that must be met for copyright protection to apply. However, given the notoriously low level of originality required, it is worth the argument on Di$count's part.