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Designers Take Copyright Infringement Into Their Own Hands

Designers are turning to social media, as well as legal action, in the fight against knockoffs.
Rains and Zara styles, style by side | Source: Courtesy
By
  • Chantal Fernandez

NEW YORK, United States — A US district judge in Manhattan made headlines on Friday when she ruled that Ivanka Trump, current first daughter and founder of a namesake fashion line, must make time to testify in a deposition about claims that her brand copied one of the most popular shoes of 2015: Aquazzura's suede, fringed "Wild Thing" style. The Italian brand, designed by Edgardo Osorio, sued Ivanka Trump and footwear licensing partner Marc Fisher in June 2016 for infringement, unfair competition and deceptive trade practices after filing two previous complaints about other shoe styles.

But legal action isn't the only way to take a stand against knockoffs in an industry awash with copyright violations from across luxury and mass market, between peers and across continents.

Last month, Brother Vellies designer Aurora James opened Instagram to see that a user had tagged the brand and her personal account in an Instagram Story. The Story captured a pair of black Zara heels, decorated along the toe-strap in light pink faux fur. Fans of the independent New York brand — founded by James in 2013 as a luxury footwear line handmade by artisans in South Africa, Ethiopia, Kenya and Morocco — would recognise the Zara style as a version of the label's tufted Dhara sandals. "BROTHER FELLIES," wrote the user in all-caps.

While social media — Instagram, in particular — has opened the floodgates for fast-fashion brands eager to identify and copy runway-fresh looks from up-and-coming designers, these networks have also become platforms for spotting dupes quickly and, often quite powerfully, shaming alleged offenders into pulling products off the shelves. It’s a useful tool for designers like James, who usually do not have the resources or time to pursue drawn-out legal disputes in a US system that provides few protections for fashion designers.

"Copyright protection for designs, even post Star Athletica [v. Varsity Brands], is relatively thin when compared to Europe and other jurisdictions," says lawyer and NYU fashion law professor Douglas Hand, referring to a case on the design of cheerleading uniforms in which the US Supreme Court ruled in favour of protecting certain aesthetic elements in March. "But now that the Supreme Court has provided us with clearer guidance, I think that there will be more plaintiffs that will test the protection for copyright designs as a result."

But many designers, particularly smaller businesses, are less interested in a court battle than the removal of offending items from the marketplace. “When you are a small, self-funded company with a sustainability mission statement you don’t necessarily have the bandwidth, both financial but also emotional, and time-wise, to take these people on and they know it,” says James.

Instagram, however, can be an effective way to push back — or at least let one's followers pass judgement. Designer Phillip Lim, who declined to comment for this story, shamed Topshop on his personal Instagram account in June by posting side-by-side pictures of his original designs and the retailer's alleged copies. "This happens all the time," he wrote. "And the sad thing is there is no law that protects intellectual property in fashion industry — but that doesn't mean I can't call it out — this is typical @Topshop! [sic]" He said high street brands have "built a greedy empire off copying other people's ideas." But it's not just high street brands that are causing offence. Lim followed up the post with side-by-side images of one of his tote bag styles from fall 2014 next to a current, and very similar, Gucci style.

In March, the Spanish luxury handbag line M2Malletier took to Instagram to share images of a spring CH by Carolina Herrera campaign featuring handbags with handles it alleged resembled M2Malletier's signature style. (CH by Carolina Herrera is a secondary accessories line licensed by Puig and produced by Spanish manufacturer Sociedad Textil Lonia.) "We are deeply shocked that @houseofherrera takes such an unfair advantage of our brand's signature handle, [sic]" read the caption.

In an era in which consumers have direct access to brands and their designers, such candid and personal statements can feel authentic. “I’m a human being so I’m going to go on social media and I’m going to post on my Instagram story and I’m going to talk about it,” says James.

She did exactly that in January, when Brother Vellies followers alerted her that Steve Madden, a frequent target of copy controversy, had released a pair of very familiar furry slides. “This is a @BrotherVellies knockoff!” commented one follower on the footwear brand’s account. “Be original.. stop stealing from small ethical businesses. [sic]” (Steve Madden did not respond to request for comment.)

James never contacted Steve Madden directly about the matter, but used her own channels to amplify the message, as she has when confronting Zara and Jeffrey Campbell in the past. In this case, she publicly implored the brand to move its production to her workshop in Ethiopia if it wanted to produce the same styles. Instead the offending style was pulled off the Steve Madden site in a matter of days. “It’s not even about the money necessarily,” she says. “The revolution is not going to happen in the court system, it’s going to happen on the consumer level.”

The revolution is not going to happen in the court system, it's going to happen on the consumer level.

Hand does not recommend making public claims without seeking the advice of legal council first, because a designer can open themselves up to a libel suit. And sometimes a designer may have signed a consulting or “ghost design” agreement with a large retailer without realising that they have granted said retailer rights to his or her other work. But barring those factors, making a public statement can be a “channel for young designers to further protect themselves, and it is a more cost-effective channel than filing a lawsuit,” says Hand.

And it doesn’t necessarily require posting for all to see. Edie Parker, the handbag line founded by Brett Heyman in 2010, has brought forth several “trade dress” cases — a form of intellectual property protection for a unique combination of features that are both distinct and non-functional — against other brands for copying its signature box-shaped clutch handbags without ever addressing it publicly. And when the brand sued fellow CFDA member brand Milly, founded by Michelle Smith in 2000, in September 2016, Instagram mix-ups (Milly’s bags were tagged as Edie Parker’s) contributed to its claim that Milly’s styles were creating confusion amongst customers, a critical legal test. The case was settled privately in January, the terms of which were not disclosed. Both brands declined to comment.

In Europe, where copyright protections for fashion are stronger than in the US, Danish outerwear brand Rains is suing Zara parent company Inditex for allegedly copying its paracoat and A-jacket styles. “We have had lawyers in each country to evaluate what our chances are in the specific countries,” says Rains chief executive Daniel Brix Hesselager, adding that the team decided to pursue legal action in Denmark before tackling other EU regions because it recently won a similar case against a Danish retailer. Plus, the country’s judicial system prohibits litigious companies from slowing the costly process down.

Rains has a design protection for two of its jacket styles which, Brix Hesselager explained, must be defended when copied otherwise Rains will lose the right to claim protection in the future. “That’s the whole issue about protected designs in general, the ones with the most resources typically win,” he says, adding that the case will be very costly even if they do in fact win. “For us it’s more important to state that our products are protected… to state that that they did actually [copy] our products.”

Despite Inditex’s history with these kinds of cases, Brix Hesselager is confident Rains will win because it was the first brand to enter the polyurethane-coated rain jacket category with a unique design, weight and style.

“This is a very fundamental case for us,” he says, adding that they expect to be in court before a jury by the end of the year. “This is not for the money in the end — we are in this to win this.”

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