Imitation is the sincerest form of flattery but at what point does all of this copying cross the line?

Copying in fashion is not novel. It dates back to at least the 1700’s when couturiers in Paris created original designs and new manufacturing processes, products of  the industrial revolution, enabled relatively rapid reproduction at low costs. Nowadays, the evidence of copying is perpetual. As we told you this week, Nasty Gal very recently copied a frock from Alexander Wang’s Spring/Summer 2015 collection. Before that, Forever 21 started selling a pretty close copy of one of Proenza Schouler’s “it” bags. My research has resulted in the usual selection of copies, which range from a million variations of Givenchy and the array of Celine copies being stocked incessantly by Zara, to riffs on Mary Katrantzou prints and a few odes to British newcomer Bobby Abley’s designs.

In a way, copying is to be expected, as fashion is inherently cyclical. It thrives on the proliferation of trends, which means that it is not uncommon for us to see recurring themes and similar looks. Moreover, it is not usual for designers to look to vintage creations and streetwear styles for inspiration. However, there is a difference between inspiration and gross imitation, and this is arguably where fast fashion retailers take it a step too far, blatantly copying and undermining the original creations of designers.

The legality of the situation is complex.

Several recent instances of copycatting have led to lawsuits; Louis Vuitton, for instance, filed suit against My Other Bag, citing trademark and copyright infringement in connection with the Los Angeles-based brand’s replication of Louis Vuitton lookalikes on canvas bags. Balenciaga hit accessories brand, Steve Madden, with a lawsuit for copying its Motorcycle bag. Lawsuits, however, are not the norm because most copying does not rise to the level of illegality.

The “design piracy” that we see from Zara, Primark, Nasty Gal, and co. is legal because few garments and accessories in their entirety are protectable by law, copyright or otherwise, in the U.S. (Clothing is utilitarian and copyright law largely does not protect useful articles).

The saving grace for designers is that the patterns and prints that appear on their garments, if original, are protectable in accordance with copyright law, which grants creators exclusive rights to their works of art (think: books, films, drawings, sculptures, etc.). Thus, if a retailer were to copy an exact Dries Van Noten print, that would constitute copyright infringement, because the original print itself (as distinct from the entire garment and as capable of existing apart from the garment) would be protected and provide grounds for legal action.

However, even this does not ensure a vast amount of protection for designers, as fast fashion retailers usually change just enough of a design to avoid ending up in court. While there is not a specific formula or ratio of how much a retailer has to alter the original print to avoid legal action, courts seem to favor copyists as the bar for originality is quite low. For instance, one U.S. Circuit court held that taking an original lithograph and mounting it on a ceramic tile is original enough to avoid a copyright infringement claim.

A fashion example: Zara’s Hawaiian chrysanthemum-like printed garments a la Prada S/S and Resort 2014. A copyright infringement claim was not in order because Zara is notoriously good at changing enough of a print or pattern to avoid lawsuits.

Prada Spring/Summer 2014 and Resort 2014 collections

Zara Summer 2014

So, while a copyright infringement claim is one of the few ways for designers to target design pirates, it is often not an applicable remedy now that fast fashion retailers are aware of the legal ramifications of copying a print exactly. This is not to say, though, that copying is “right.”

Looking at the matter by the numbers produces fairly significant results. The UK Anti-Counterfeiting Group estimates that the fashion industry loses nearly 4% of its annual revenue to copies. Other sources suggest that fast fashion copying costs the industry hundreds of millions of dollars annually in lost sales, especially as the quality of garments and accuracy of the copying increases and the turnaround time becomes impossible for designers to compete with. However, maybe more importantly (but certainly less quantifiable) is the affect copying has on a brand’s image. Not only are brands losing sales to fast fashion retailers, they stand to lose their air exclusivity as copies are widely available.

If everything in fashion is truly cyclical, then in theory, fast fashion’s days are numbered. However, judging by the sales, fast fashion is here to stay for a while.  As such, I think we, as a fashion community, need to find a balance that respects the fact that a lot has already been done in fashion but simultaneously acknowledges that designers are still capable of producing original creations.