Is it inspiration? Is it imitation? And why – exactly – is everyone always knocking-off each other? Whether it takes the form of a garment design the runway of one designer one season going to the runway of another a few seasons later or from the runway in Paris to the racks of Zara a few weeks later, fashion – especially the industry in the U.S. – has a complicated relationship with copying.
The topic of copying is most frequently approached when a small brand – or an indie designer – is copied by a fast fashion giant. This has been a consistent topic of discussion in light of the latest flood of little-known designers coming forth to call foul on fast fashion retailers for copying their designs. This is paired, of course, with a few not-so-fast fashion brands, which have been called out for copying recently.
A common line of questioning in such instances: Why is this ok? In particular, why is it perfectly acceptable for Zara, Mango, and co. to copy others’ work? And also: Why is it alright for Alessandro Michele to use another’s creation on the runway at Gucci or for Raf Simons to use others' creations - such as Bonnie Cashin's cape design (below, left) - on the runway at Calvin Klein (below, right)? How is this legal?
What is the Law?
Put simply, copyright law has some tricky ins-and-outs in the United States. This is a blanket statement, of course, but it does bear a bit of truth, nonetheless. Since copyright law - the type of intellectual property law that protects "original works of authorship,” such as books, paintings, sculptures, and songs - does not protect useful things, like clothing and accessories (which have useful properties), in their entirety, it has provided a rather small amount of protection for those things in their entirety to date compared to the protection not provides for say, sculptures.
Creative elements of a design that can be separated from the functional elements are subject to protection, which is why elements of a garment, such as a print that covers it, may be protected (as Pictorial, Graphic or Sculptural Works).
Do remember that in light of the Supreme Court's ruling in Star Athletica v. Varsity Brands, fashion brands may be able to claim a bit more under the umbrella of copyright law. (More about that case and its implications here).
Still yet, what has been made clear from countless copyright filings and disputes, the copying of original jewelry designs often tends to give rise to legal ramifications as jewelry is afforded greater copyright protection in its entirety than garments are. The same can be said for original prints and patterns that appear on garments and accessories.
Copyright law, while often the most obvious type of protection for the layperson, is just one part of the equation. Other forms of intellectual property protection, such as trademark and patent protection, also stand to provide legal backing for fashion designs.
Trademark law, for instance, protects a designer’s name or logo, which can prove widely useful since many bags, shoes, and garments, at least from the likes of Gucci, Louis Vuitton, and Fendi, are heavily logo-ed. (Note: Trademark law only protects the names/logos, etc., and not the underlying design. Trade dress protection, however, covers the appearance of a product, assuming it has reached the necessary level of "secondary meaning," i.e., that consumers can link the appearance of the product with the source.
Patent protection – namely, by way of design patents – is likely the best fit for fashion designs, as is protects the “new, original, and ornamental design for an article of manufacture." There is a bit of a roadblock here for many brands, as design patent protection os expensive (it tends to cost thousands of dollars to achieve) and takes a relatively long time (upwards of one year) to obtain.
That if often too long for most fashion brands, whose business models depend on trends and season-specific wares. 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 – let alone penalized – for doing so.
Taken together, these technicalities tend to present difficulties for brands that are not heavily funded from ensuring the paper protection. This is difference, of course, from saying that copying in the U.S. is legal or that these fine points serve as a "bar" to protection.
Imitation versus Inspiration
It is worth noting that fashion is a practice that relies heavily on inspiration. In fact, the entire fashion industry is based on the ebb and flow of inspiration and facilitation of trends. It is important to call attention to the distinction between imitation and inspiration. Imitation refers to the production of identical copies and/or the substantial copying other artistic works.
This is the type of replication that would likely run afoul of intellectual property laws, if we considered it in a legal context. Speaking outside of the legal realm, imitation is the blatant replication of the cut, construction, print, pattern, and/or other features of another garment or accessory.
Imitation is different, of course, from inspiration, as the latter entails taking existing elements and interpreting them in a new or original way. Inspiration is extremely common place in fashion, largely because so much has already been done.
With that in mind, many times designers or the many social media accounts/websites dedicated to “spotting copies” will post side-by-side images and call ‘IMITATION!’, when the word they are actually looking for is … inspiration.
The promotion of inspiration - even by fast fashion retailers - may seem like a strange argument coming from a website that is largely protectionist in nature, one that believes that designers and garments deserve the same level of protection as photographers and photos.
However, there is a very fine line between imitation and inspiration, and it is an important one – one that cannot be confused or widely misused – because fashion so thoroughly depends on the ability to draw inspiration from existing sources … because the silhouette of the pencil skirt already exists and the button-up white shirt has already been done. If we were to start calling ‘COPY!’ every time an existing element was used, we would be clothing-less within a season or two.
Outside of the U.S.
While a lack of perfectly formulated fashion protections is the norm in the U.S., this is not the case in other countries – namely, in the countries of the U.S.’s international fashion competitors. 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.
So, it is within these "loopholes," if you will, that retailers like Zara, Forever 21, H&M, and the like – as well as bigger names in the world of high fashion – can actively profit from the designs of others.
*Note: For those interested in an alternative proposal for protection in regards to fashion, check out my article, "Protecting Fashion Designs: Not Only What, but Who," 6 Am. U. Bus. L. Rev. 595 (2016-2017).