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Versace is under fire after visual artist Kesh alleged Monday night that the Italian fashion house ripped off one of her prints from the 2013 American Apparel collection she designed. 

Kesh took to Instagram to call out Versace for currently selling what the artist called a $650 “rip off” of her $50 “Face Le New” T-shirt. Kesh’s shirt is still available for purchase on American Apparel’s website. According to the artist’s Instagram post, the Versace design was sold out in three sizes. The Selfridges website later stated that the shirt was out of stock. 

Versace's tee (left) and KESH x American Apparel (right)
Versace’s tee (left) and KESH x American Apparel (right)

A few of Kesh’s social media posts read as follows …

at least make it better than the $30 original @versace. this looks like a first draft.

this.hurts. $650.versace rip off. sold out in 3 sizes. what is this madness?  from huge designer labels to small boutiques to giant pop stars to fame hungryformer friends. what is this? Why can’t these companies . these brands . thesepeople create their own work? what happened? why do these people thinkthat everything that they lay their eyes on instantly belongs to them?

made this [piece] from nothing. turned it into something. my AA collab was 4 u. affordable and accessible. 4 the luv.

Considering that original prints that appear on garments are, in fact, protectable by copyright law in the U.S., KESH very well may have grounds to sue. Here’s why …

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 garments and accessories ARE protectable under the umbrella of copyright law as Pictorial, Graphic or Sculptural Works (“PGS”). In order to receive copyright protection in the first place, an artistic expression must original and fixed in any tangible medium of expression. The latter requirement is clearly not an issue here because the artwork (KESH’s face design) has been depicted likely on paper and then on t-shirts. Originality is also likely not an issue either, as we know, the level of originally required for a work to achieve copyright protection is pretty low. This leaves separability, which is at the heart of the PGS category.

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 (the face design) and the useful function of the item (the function of the t-shirt). Luckily for KESH, the design on a t-shirt scenario is one that is commonly cited as a classic case in which separability exists. The ration is this: Can a t-shirt exist and function like a t-shirt without the ornamental design on it? Yes. As a result, there is separability.

With these elements in place, the final issue (assuming KESH has registered the face design with the U.S. Copyright Office, as that is a prerequisite for filing a lawsuit for copyright infringement) is whether the designs are “substantially similar” — the requisite standard for copyright infringement (and for the legal folks: I challenge you to tell me whether the face design is a protectable expression or an unprotectable idea). I’ll leave you to debate this one in the comments section.

UPDATE: According to a statement from KESH, she has enlisted the help of legal counsel and plans to file suit against Versace in connection with the t-shirts. While I would go into an anaylsis of whether or not she will prevail on copyright infringement claims, we will probably never know. Lawsuits like this one almost always end up settling out of court to avoid the cost and time-consuming nature of litigation. As such, Versace will likely pay KESH a relatively small sum and stop selling the t-shirts. In the end, the monetary sum that Versace will pay over to KESH will not hurt it — the brand was, after all, valued at $5.8 billion in 2012, with sales “surging” every year since then. If anything, the house will be damaged more by the bad press that it is currently courting thanks to the alleged copying.

But more to come, maybe …