Legal Patterns | On Fashion Copycats

Left: Diane von Furstenberg Spring 2009, right: Mercy Spring 2008 | Source: National Post

Left: DVF Spring 2009, right: Mercy Spring 2008 | Source: National Post

Today we introduce Legal Patterns, a new series of articles on BoF exploring fashion and the law. Just as design patterns form the foundation of good fashion design, legal frameworks enable fashion businesses to defend their financial interests and protect their designs.

BRUSSELS, Belgium — In the fashion industry, the copycatting of designs is a not a simple issue. Accusations fly in all directions: luxury houses accuse high-street brands; artisans accuse fashion houses; and fashion houses accuse other fashion houses. Indeed, Diane von Furstenberg has found herself on both sides of the issue, submitting copycatted high-street designs by Mango and Forever 21 as legal evidence in court, while herself being accused of copying a jacket designed by the Canadian brand Mercy.

Nor is this a new problem. Since their inception, houses have struggled with fashion espionage. In the past, fashion companies tried to maintain strict control over their intellectual property, not through an assertion of legal rights, but by physically hiding their designs from competitors. In the 1950s, for instance, Christian Dior’s press officer insisted that “all precautions must have been taken to ensure that no member of the profession [e.g. fashion designers, manufacturers, milliners] would be attending” their fashion shows.

Until a few years ago, fashion houses religiously pursued this strategy of strict control. But with the rise of blogging and fast fashion, this approach no longer works. Today’s fashion world is faster and more transparent than ever, blurring the line between what is ‘copying’ and what is ‘inspiration’ and putting new pressure on fashion houses to protect their intellectual property.

Can the law help?

Applying intellectual property rights (IPRs) – like copyright and design right – is tricky when it comes to fashion. Generally speaking, IPRs are granted to the author or creator of a work to reward investment and encourage creativity with a monopoly right. But IPRs mustn’t unreasonably restrict the ability of others to develop new ideas and produce new works, so the scope of the monopoly is limited in some way, usually by time. The scope of copyright protection depends on the depth of originality of the work, while the scope of design rights depend on how novel the design is compared to the “state of art.” But because many fashion items have certain fixed parameters a dress must fit the body, a bag must have handles there are substantial limits on the legal protections available to designers.

Furthermore, it can be difficult to prove claims of copying in court, because the legal process involves a subjective comparison of the copy and the original by a judge trying to put himself in the shoes of a typical customer. Indeed, the majority of cases are settled out of court, leaving the industry with little precedent on which to build legal certainty.

Blatant copycats like counterfeiters mustn’t be tolerated. In these cases, a purposeful law is largely in place in the European Union, though efforts to facilitate enforcement would be welcome. But the trickier issue is how to deal with what the fashion industry calls ‘inspiration.’

Fashion is an extremely fast-paced business, with very short periods for recouping costs. At first, this would seem to bolster the case for stronger, short-term legal protections against stolen ‘inspiration.’ But on closer inspection, these kinds of copycats can actually contribute to the creativity and innovation that drives the industry.

Indeed, we saw signs of creative inspiration all over the Spring/Summer 2010 shows: Was the beige ruffled dress from Valentino inspired by the white dress Viktor & Rolf presented in their Spring Summer 2006 collection? Was Jason Wu’s violet dress with a black waist band inspired by the violet dress by Alber Elbaz for Lanvin Spring Summer 2008?

We also see copying on the high-street, with H&M, Zara and others quickly reproducing high fashion trends. However, one could reasonably argue that this simply gives affluent consumers more reason to buy new and different things, which puts more pressure on fashion houses to innovate, driving the industry forward.

Certainly, this system of inspiration can be seen as a positive even inherent part of the fashion industry. But it should operate on fair terms.

Here, perhaps fashion can learn a thing or two from the music industry. With music, ‘collecting societies’ ensure that artists and rights owners are fairly remunerated when their works are played or more relevant to fashion sampled.

This type of system could be tailored to the fashion industry. For example, the “sampling” of a fashion design could go through a society that’s specifically set up to collect and distribute remuneration across Europe. Such an approach would not grant a right of reproduction, but allow designers, fashion houses, artisans, and others to draw inspiration from each other on fair terms.

Furthermore, why not recognize “moral rights” for fashion designs? As well as economic rights, copyright law grants something called a “moral right.” This is essentially the creator’s right to attribution by name when his work is copied.

Moral rights are not currently granted by design right law, but in the world of computer software development, “open source” licenses often contain attribution of authorship. Adopting a similar concept for the fashion industry would obligate “samplers” to not only pay a fee, but give fair attribution to the original designer, channeling potential customers towards the source of the design.

If last century’s strategy of strict controls on fashion IP is failing, perhaps an “open source” system that acknowledges and promotes the sampling of inspiration based on fair remuneration and attribution could be the answer for the next century.

Hanne Melin is a competition and IP lawyer based in Brussels.

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9 comments

  1. Just as design patterns form the foundation of good fashion design, legal frameworks enable fashion businesses to defend their financial interests and protect their designs

  2. Copying is wide spread in the industry with many desingers thinking it is ok, as long as you change the item a cetain percentage. You may be interested in the blog post I wrote: http://fashionlaw.foxrothschild.com/2009/10/articles/fashion-design-copyright/the-30-rule-can-get-your-company-sued/

    and also worth noted is the design piracy prohibition act (DPPA) and how it tries to eliminate copying, but allowing for trends:
    http://fashionlaw.foxrothschild.com/2009/11/articles/fashion-design-copyright/design-piracy-protection-act-will-not-protect-trends/

    @staciriordan

  3. This was definitely a great article. It seems to me that it is almost a given that high street fashion will blatantly copy the big fashion houses and luxury designs…afterall, it is almost the point of their existence – take inspiration from haute couture and reconfigure it into everday pieces that the average consumer can afford. The argument is quite intriguing – how can you legally or not tell if a certain design is truly “original”? What makes a certain design original in the truest definition? The comparison to the music industry is a good one – one that I had never thought about the similarities before. Although many copy cat designs are obvious (and most times only if it was a unique piece shown within a season or two that people can remember)…they is clearly a lot of grey area here. Overall excellent article – really has me thinking.

    Thanks,
    Kesh
    Toronto, Canada

    Keshia Khan from Las Vegas, NV, United States
  4. Such a great topic to introduce; design copycatting has always been an issue as there is ‘grey areas’ of not knowing what is original, who came up with the design first and what is the fine line that stops it being a copycat.

    With so many designers in the world it is worth considering how much inspiration can be unique; especially with daily blogs, magazines, videos etc so readily available for viewing.

  5. Thanks for this great read. I have four Cease & Desist cases going on right now in the US, HK, UK and Brazil. It’s is very frustrating and disheartening when people copy straight from you, not bothering to change anything. I hope that we designers will get more protection, especially when we come up with a ‘signature’ that actually took years to develop.

    Kathy from New York, NY, United States
  6. Thank you, Kathy. I am sure you’re well covered as far as lawyers go… but if you would nevertheless like to discuss these issues, I’d be more than happy to. / Hanne

  7. The problem with proposing such laws is the vast difference between the US and European legal cultures. In IP, US law does not accept most moral rights while European law accepts most moral rights (moral rights includes attribution, future control, presentation, and more).

    Staying within the US, there are several Supreme Court cases which specifically say clothing CANNOT be copyrighted – it is established US law. The basic idea is that because a copyrighted work cannot be predominantly functional and clothing is considered almost wholly functional. By that definition, clothing should be covered by patent. However, unlike copyright, patent applications are a long, arduous, very costly process with very little assured protections. By the time a patent is approved, the costs are so high and so much time has elapsed (easily a year, usually more), the protections are rendered ineffective.

    One of the first things I read about the DPPA is that it is attempting to redefine “fashion design” that goes beyond mere covering as a creative endeavor and not just a functional item.

    Tim from Des Moines, IA, United States