image: Zara image: Zara

Fast fashion darling Zara has been hit with yet another lawsuit, this time over copyright infringement allegations. Plaintiff Nuance Industries, Inc. (“Nuance”), a New York-based wholesale textile company, filed suit against Zara and ten anonymous defendants in the U.S. District Court for the Southern District of New York, alleging that Defendants unlawfully copied its copyright-protected textile design (“Design 1651”) and created “identical or substantially similar” prints for their own benefit.

According to Nuance’s complaint, which was filed on Tuesday, it is hardly a coincidence that Zara produced and sold a lookalike design, as Nuance “widely disseminated” its Design 1651 fabric to various, unspecified fashion and apparel companies. Nuance lists other ways the defendants may have previously seen (and sought to copy) their designs: Access to the Nuance showroom or design library, illegally distributed copies of the textile, access to Nuance’s samples, and/or access to lawfully printed garments featuring the copyrighted print.

 Nuance's print (left) and Zara pants (right) Nuance’s print (left) and Zara pants (right)

It is worth noting that such widespread distribution does not give Zara the right to blatantly rip off Nuance’s copyright-protected design. In fact, the complaint argues that the defendants “have committed copyright infringement with actual or constructive knowledge of Plaintiff’s rights such that said acts of copyright infringement were, and continue to be, willful, intentional and malicious.” As a result, Nuance seeks unspecified damages for the willful copyright infringement, as well as to disgorge the Defendants of any profits they earned from selling the illegal garments.

According to a statement from Nuance’s counsel, Michael Steger of Doniger / Burroughs: “Domestic fashion companies like Nuance have little choice but to prosecute copyright infringement claims—they devote far too many resources developing and purchasing original artwork to then let others reap the benefits of that investment without permission or compensation. In this case, it is troubling that an international company like Zara would not only copy artwork it does not own, but then refuse to even respond to the cease and desist correspondence sent to it in June of this year.”

This is certainly not the first time Zara has come under fire for the unauthorized use of copyright-protected items. It remains to be seen if they will be held accountable in this instance.

As you may know, copyright law tends to provide limited protection for garments and accessories in their entirety. In this case, however, it is not any one garment (read: useful item) at stake, but the textile print itself – which a court could likely find to be an original and separable work of authorship and thus, protectable by copyright law.

Zara opted not to comment on the pending litigation.

The case is NUANCE INDUSTRIES, INC. v. ZARA USA, INC., Civil Action No. 1:16-cv-08501.

Nicole Malick is a student at the University of Pennsylvania Law School.