Nasty Gal, the Los Angeles-based e-commerce giant in the making, is on our radar again. The brand is stocking a set of questionable garments: its Reverse Juicy Fruit Top and Skirt. The two pieces bear a print that is identical to one that UK-based brand, Kuccia, developed and began selling last year. According to Kuccia's creative director, Soraya Goggin: "We sold a dress last year on our own site and in Topshop and Topshop online, which was in our SAME print and actually the SAME silhouette, save for the fact that they cut it into two pieces." Goggin is referring to Kuccia's Watermelon Minidress, which sold out on its site, as well as on Topshop's. Interestingly, the brand also sold a similarly-named "Juicy Fruit Crop Top" in that same time period. In case that's not enough similarity for you, the price points for Kuccia's pieces and Nasty Gal's are essentially the same, as well.
It is obvious from the side-by-side images that the Kuccia and Nasty Gal prints are the same. Not lookalikes. Not similar. They are the exact same print. And Kuccia's Soraya Goggin has a strong reaction. Of what looks a lot like print stealing, Goggin told us exclusively:
I find it utterly disheartening for a designer and smaller brand, such as mine, to be wholeheartedly ripped off by an online fashion giant, such as Nasty Gal. They stock other brands’ pieces, so why not come to us and buy into our brand, instead of stealing our designs, reaping the financial benefits and leaving us with literally nothing!
Price isn't a factor. We retailed our yellow watermelon body con mini dress at £38 GBP ($63) last year and it sold out in almost record timing. Nasty Gal are selling their skirt alone for £35 ($58) and the crop for £29 ($49). If we were to retail that same skirt, it would be around £28 ($47) and the crop £22.50 ($38). So actually, Kuccia is priced even lower than Nasty Gal. Our wholesale to retail mark up is 3. So, our retailers always make a good margin on our products.
In my eyes, this is theft.
So, what rights does Kuccia have? Well, as we've told you in the past, copyright law largely does not extend to clothing because clothing is utilitarian in nature. BUT, it does cover original prints that appear on clothing under the umbrella of Pictorial, Sculptural or Graphic works (more about them here). The issue here would likely be: Is Kuccia's print original enough to be subject to copyright protection (which automatically applies in the U.S. once the print is created)? There is a copyright-dictated argument that there are only so many ways to depict a slice of watermelon. However, the arrangement of the watermelon slices here and their placement against a yellow background would likely meet the relatively low standard that most courts in the U.S. require for a design to be deemed original.
Nasty Gal would certainly put up a fight. The company has stated in the past that it stocks many pieces that come from third party suppliers and ones that it did not know they were copies. While that is an arguably reasonable statement, it becomes significantly less reasonable when a retailer consistently stocks pieces that are derived from the designs of others and are made aware of this by the original designers themselves (whether it be Givenchy or smaller, lesser-known designers like Sophia Webster). We have not exactly taken this excuse as one of merit in the past and we are really not buying it in this case. A quick Google search (literally, it took us less than two minutes) of "yellow watermelon print" revealed the Kuccia dress within the first few results. Is it a stretch to say that before ordering a design from a third party supplier (one which has very likely provided you with copied designs in the past), a reasonable retailer should Google the design? We don't think so.
In actuality, any argument of "we didn't know it was a copy" can be set aside because in a copyright infringement case, it is not an applicable argument. Copyright infringement is a strict liability crime, which means that the court doesn't care about a defendant’s mental state. Thus, knowing or not knowing that a print is someone else's copyrighted print is simply not relevant.
So, while we wait to see if Kuccia registers its design and slaps Nasty Gal with a copyright infringement lawsuit, here's to hoping Nasty Gal removes the infringing designs and takes a bit more care in the future to avoid stocking copies of others' work.