Keeping Up With Copyright Infringement: Fast Fashion’s Modern Takeover
Blog Post | 108 KY. L. J. ONLINE | January 9, 2020
Keeping Up With Copyright Infringement: Fast Fashion’s Modern Takeover
Catherine Potter
Copyright infringement is a pinnacle problem in the fashion industry, as fast fashion retailers “knock off” designs created by independent designers worn by social media stars. The crux of this problem lies in current United States copyright law which protects only original prints or graphics, not the actual designs carefully crafted by highly skilled fashion designers.
[1] These loopholes allow for fast fashion brands to profit, legally, on the designs of others, as clothing designs can be easily duplicated without permission of the original creator.[2]
Fast fashion company business models rely on the ability to copy trends, quickly produce them, and then bring them to market at a low price point.[3] The sector is “ridiculously profitable” and demands legal representation as such.[4] The industry remains successful because consumers rely on brands like Fashion Nova, Forever 21, Missguided, Asos, and others to recreate celebrity looks for cheaper prices.[5]
Different from music, art, literature, and other creative industries, fashion copyright law remains outdated.[6] Fashion was historically centered in Europe, with hubs in Paris and Milan.[7] During the 1980s and 90s, American designers emerged to the forefront.[8] Fashion designers in France and Italy remain protected by their country’s copyright laws, though American law has not developed to afford their designers the same protection.[9]
In 2004, Forever 21 was sued by multiple designers like Diane Von Furstenberg and Anna Sui, along with 47 other designers, for copying their clothing.[10] Forever 21’s defense was “ignorance” and that they could not monitor every buyer or vendor to the point of knowing how they came up with the repeat designs.[11] In 2012, Christian Louboutin sued Zara for copying their iconic red sole, selling the shoe for much less than the average $700 price per pair, with the court ruling that the trademarked red sole was too vague.[12]
Today, social media has had a tremendous effect on consumer demand for fast fashion, as high profile celebrities and social media influencers such as Kim Kardashian, Kylie Jenner, Jennifer Lopez, and others post on their social media platforms in couture designs by Thierry Mugler, Versace, or Jean Paul Gaultier, days later to be copied by companies like Fashion Nova or Missguided, and the like.[13] Kim Kardashian filed suit recently against Missguided, a British Fast Fashion company, alleging that they used her likeness to sell cheaper versions of the designer clothing she wears.[14]Interestingly enough, Kardashian and the designers did not maintain infringement claims, but right of publicity violations.[15] Kardashian settled with Missguided and received $2.7 million dollars in damages from the company.[16]
John Galliano famously turned newspaper printed textiles into garments while at Christian Dior in the early 2000s.[17]Pretty Little Thing, another fast fashion company, recreated the garment using Galliano’s same name in the print.[18]Online sources believe that the use of the print alone will not give rise to an infringement claim, but rather falls under the copyright law doctrine of “idea-expression dichotomy” which provides legal protection over the expression of an idea, not the actual idea in and of itself.[19]
These knock offs are arguably what fuels part of the fashion industry, generating billions of dollars. The law protects this profitability but it is worth questioning whether if the outdated copyright laws were modernized that these high profile designers would be afforded more legal protection and ability to bring copyright infringement claims, perhaps mirroring the protections given to European designers.
[1]Amy Lamare, How Fast Fashion Became a Multi-Trillion-Dollar Industry, Thinknum,
https://media.thinknum.com/articles/examining-fast-fashions-appeal-and-issues/ (last visited Jan. 9, 2020).
[2] Chavie Lieber, Fashion brands steal design ideas all the time. And it’s completely legal., Vox (April 27, 2018), https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m.
[3] Id.
[4] Id.
[5] Maria Bobila, 11 Retailers to Know in a Post-Forever 21 World, Fashionista (Oct. 10, 2019), https://fashionista.com/2019/10/fast-fashion-stores-retailers-brands-like-forever-21.
[6] Chavie Lieber, Beyond Elle Woods: The Rise of Fashion Law, Racked (Jan. 15, 2015), https://www.racked.com/2015/1/15/7561277/fashion-law.
[7] Id.
[8] Id.
[9] Id.
[10] Amy Lamare, How Fast Fashion Became a Multi-Trillion-Dollar Industry, Thinknum,
https://media.thinknum.com/articles/examining-fast-fashions-appeal-and-issues/ (last visited Jan. 9, 2020).
[11] Id.
[12] Id.
[13] Lisette Voytko, Versace Sues Fashion Nova For Knowing Off Famous Jennifer Lopez ‘Jungle’ Dress, Forbes (Nov. 27, 2019, 9:00 AM ), https://www.forbes.com/sites/lisettevoytko/2019/11/27/versace-sues-fashion-nova-for-knocking-off-famous-jennifer-lopez-jungle-dress/#6609f8b71d4c.
[14] Will Martin, Kim Kardashian won $2.7 million in a lawsuit accusing fast-fashion brand Missguided of ‘knocking off’ her clothes, Business Insider (July 4, 2019, 5:45 AM), https://www.businessinsider.com/kim-kardashian-missguided-lawsuit-awarded-damages-california-judge-2019-7; From Zara to Fashion Nova: Fast Fashion is Big Business & More Often Than Not, Perfectly Legal, The Fashion Law (Feb. 28, 2019), https://www.thefashionlaw.com/home/from-zara-and-hampm-to-missguided-and-fashion-nova-fast-fashion-is-big-business-and-more-often-than-not-perfectly-legal.
[15] From Zara to Fashion Nova: Fast Fashion is Big Business & More Often Than Not, Perfectly Legal, The Fashion Law (Feb. 28, 2019), https://www.thefashionlaw.com/home/from-zara-and-hampm-to-missguided-and-fashion-nova-fast-fashion-is-big-business-and-more-often-than-not-perfectly-legal.
[16] Greg Barradale, Missguided has to pay Kim K $2 million for ripping off her looks,The Tab, https://thetab.com/uk/2019/07/04/missguided-have-to-pay-kim-k-2-million-for-ripping-off-her-looks-109310 (last visited Jan. 8, 2019).
[17] John Galliano’s Newspaper Print is Getting the Fast Fashion Treatment 20 Years Later, The Fashion Law (Jan. 6, 2020), https://www.thefashionlaw.com/home/john-gallianos-newspaper-print-is-getting-the-fast-fashion-treatment-20-years-later.
[18] Id.
[19] Id.