image: Nasty Gal (via Fashionisers)

image: Nasty Gal (via Fashionisers)

THE FASHION LAW EXCLUSIVE – Jewelry designer Pamela Love has filed suit against fast fashion brand Nasty Gal for copyright infringement. In Love’s lawsuit, which was filed in the Southern District of New York, a federal court in Manhattan, Love alleges that Nasty Gal copied and sold three of her copyright protected jewelry designs, including her Five Spike earring, Dagger Rosary, and Talon Cuff, all of which have recently disappeared from the Nasty Gal website.

According to Love’s lawsuit, which seeks upwards of $300,000 in damages, after reaching out to Nasty Gal in 2014 regarding at least one of allegedly infringing designs, Nasty Gal’s counsel informed Love’s counsel that they would remove the design from the Nasty Gal website. However, according to Love, who launched her New York-based brand in 2007, instead of doing so, Nasty Gal continued to sell the design for over a year and a half thereafter.

Love, who did not provide a comment in connection with the litigation, further alleges that even prior to informing Nasty Gal of the infringing nature of the designs, the company was aware of their striking similarity to Love’s designs, which are stocked by Barneys and Neiman Marcus, among other retailers, and which have been featured in Vogue, Elle, the New York Times, and other publications. Per the complaint, “The buyer of both the infringing Five Spike Earrings and Dagger Rosary designs was an employee of Nasty Gal who purposefully sought out products that copies Ms. Love’s original designs.”

 image: courtesy of Love complaint

image: courtesy of Love complaint

This revelation should come as little surprise given the significant number of copied designs that Nasty Gal – valued at upwards of $240 million – has sold since its inception in 2006. Love’s complaint points to an array of instances of blatant copies that have been sold by Nasty Gal, including copies of Chanel, Celine, Givenchy, and Moschino garments and accessories. Per the complaint, “Nasty Gal is a serial infringer, relying on a business model that ignores the intellectual property rights of others.” As a result, Love wants Nasty Gal to immediately and permanently cease all sales of the infringing goods and to pay damages, including but not limited to lost profits.

Unlike in most cases of the copying of garments, 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. Not sure why?

Well, in order to receive copyright protection, an artistic expression – such as a necklace or earring – must be a work of authorship that is original and fixed in any tangible medium of expression. For the initiated, while few garments and accessories in their entirety are actually protectable via copyright law in the U.S. (as clothing and many accessories are utilitarian in nature and very few meet the separability requirement for useful articles), the patterns and prints on those garments, and the various elements of a purse or piece of jewelry, if original, are protectable under the umbrella of copyright law as Pictorial, Graphic or Sculptural Works (“PGS”).

In order for a work to qualify as a PGS worthy of copyright protection, several elements must be met, namely: There must be some degree of separability between the artistic element at issue and the useful function of the item. So, for instance, can a t-shirt exist without the design on it? If so, there is separability.

In terms of conceptual separability, the Kieselstein-Cord case and its decision in favor of protecting a decorative belt buckle (and the cheerleading case that is pending before the Supreme Court), comes to mind. The court said in the Kieselstein-Cord case, “The primary ornamental aspect of the Vaquero and Winchester buckles is conceptually separable from their subsidiary utilitarian function” and that pointed out that wearers of the belts “used them as ornamentation for parts of the body other than the waist.” That’s separability in a nutshell.

As for Nasty Gal in a nutshell? Well, its just a copycat.