Less than a month after making headlines in connection with its swiftly sold-out collaboration with rapper Cardi B, Fashion Nova has been slapped with an unrelated lawsuit, accusing it of copying another apparel company’s copyright protected design. According to the complaint that Riot Society filed in a California federal court late last month, Fashion Nova “knowingly and intentionally used [its original two-dimensional ‘Panda Rose’] design in the production of unauthorized goods,” thereby running afoul of federal copyright law.
In the newly-filed suit, Southern California-based Riot Society claims that by “selling garments that bear designs that are identical or substantially similar to [its Panda Rose design],” Fashion Nova is infringing the copyright protections in its “best-selling” design, one that “has long been offered and advertised for sale by [Riot Society] on numerous outlets, including but not limited to, [Riot Society’s] website and social media pages as well as those of authorized third party retailers,” such as Urban Outfitters, Tillys, and Nordstrom Rack.
Riot Society asserts that while it notified Fashion Nova of the infringement back in June 2018 and demanded that Fashion Nova immediately cease all sales its $22.99 hooded sweatshirt, which bears the Panda Rose design, it did not receive a response from the popular fast fashion brand, which continued to offer the infringing products for sale. Lawyers for Riot Society followed up with two additional cease and desist letters, including one sent as recently as November 7, 2018, but it still has “not received any response [from] Fashion Nova and has not received the information or documents [it] requested in such letters.”
With the foregoing in mind, Riot Society has set forth claims of copyright infringement in connection with the specific 2-D panda bear graphic (i.e., the separable creative element of the otherwise unprotectable useful garment). The brand argues that as a result of Fashion Nova’s “willful and intentional misappropriation and/or infringement of [its] copyrighted design,” it “has suffered substantial damages to its business.” All the while, Riot Society claims that Fashion Nova has “obtained direct and indirect profits they would not otherwise have realized but for their infringement of the design.”
Riot Society is seeking injunctive relief, which would serve to immediately and permanently bar Fashion Nova from selling garments bearing the Panda Rose design. It is also seeking either statutory damages of $150,000 per infringement or actual damages (depending on how many products Fashion Nova sold that included the Panda Rose design), whichever is greater.
The suit comes as Fashion Nova has built a name for itself thanks to its ability to rapidly turn around hundreds of lookalike runway garments for a fraction of the price. For instance, in August, Fashion Nova meticulously created nearly exact replicas of various looks from Kylie Jenner’s 21st birthday celebration – from a dead ringer for the birthday girl’s Swarovski crystal shorts suit created by Kuwait-based brand LaBourjoisie to her Peter Dundas-designed magenta mini dress.
Why is it that neither LaBourjoisie not Peter Dundas filed suit against Fashion Nova over those widely-marketed copies? Well, that has to do with the technicalities of copyright law.
It is well-established that garments – no matter how beautiful or well-made – are considered utilitarian articles due to their various functional uses. With this in mind, copyright law, which refuses to provide protection (i.e., a monopoly) for useful creations, will only protect the creative and separable elements of such useful articles.
In the case of garments, this proves difficult because a sleeve or the neckline from a dress once separated from the dress as a whole (either literally or figuratively) is not really capable of existing/operating independently from that dress in the same way.
On the other hand, a print on a t-shirt or sweatshirt, such as Riot Society’s Panda Rose design, can easily exist and function (as a design) regardless of whether it is on a t-shirt or not. As such, the Panda print is protected, whereas the original cut and construction of Kylie Jenner’s Peter Dundas dress is not. The same goes for the design of the hot pink Yeezy dress that sister Kim Kardashian wore to Kylie’s birthday outing, which has also been given the knockoff treatment by Fashion Nova.
A representative for Fashion Nova was not immediately available for comment.
*The case is L.A. T-SHIRT & PRINT, INC., dba RIOT SOCIETY v. Fashion Nova, 2:18-cv-09984-DSF-JC (C.D.Cal.)