Design lovers and fashion darlings have long turned to fast fashion brands to supplement their wardrobes with pieces that are distinctly high fashion at a far lower price point. And when it comes to looking like you’ve stepped fresh off the pages of Style magazine, no one does it better than Zara, a company whose rapid expansion and emergence as one of the world’s major retailers has lined the pockets of its executive leadership – the company’s founder, Amancio Ortega, recently displaced Warren Buffet as the third-richest person in the world, according to Bloomberg’s Billionaire’s Index.
Despite Zara’s overwhelming success and irrefutable place in the fashion blogosphere, the company has been widely criticized for its design model, which appears to be nothing short of copycat. Many of Zara’s collection pieces often mimic high-end fashion designs, particularly from designers like Celine, Alexander Wang, and Balmain. The trouble for these designers is that the consumer simply doesn’t care: it’s more important to snatch up the boxy sleeveless blazer that’s a carbon copy of the runway version, without having to save for months for the real thing.
It’s a business model that’s been adopted by fast fashion retailers seeking to capture a certain consumer at a certain price point: she’s young, fashion conscious, and has dispensable income. Brands like Zara, H&M, and Forever 21 have cornered the market on selling billions of dollars worth of copycat designs, but what are the legal ramifications for these companies? How are they getting away with it?
Why fashion isn’t copyrightable
You may be surprised to find that fashion designs, in their strictest sense, are not copyrightable. Though fashion designers are irrefutably considered artists in their own right, the work product is not protected, thanks to a 200-year old United States case that states that clothing is a utilitarian item, not artistic expression or scientific invention, and therefore, not copyrightable. Seems difficult to argue that in this day and age, right? Fashion and legal experts tend to have differing opinions. On the one hand, it’s been argued that copyrighting fashion would limit the free flow of ideas, and therefore harm the fashion business as a whole, arguing that imitation breeds new ideas and designs.
Yet many others would disagree, including the Council of Fashion Designers, who supported a bill proposed by Sen. Chuck Schumer (D-NY) in 2012. The Innovative Design Protection Act of 2012 (IDPA) sought to grant copyright protection to fashion designs. Under IDPA, designs would receive copyright protection for three years if they “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Unfortunately for fashion designers, that resolution has yet to pass.
But that doesn’t necessarily limit a fashion designer’s ability to protect at least some facets of their work. A designer can copyright or trademark certain aspects of clothing, but those protections can be limited and difficult to prove.
How can designers protect their fashion designs?
Designers are able to register copyrights for original prints and patterns, innovative combinations, and unique color arrangements. They can also protect any conceptual elements of a design that can stand away from the functionality of an article of clothing. This is why patterns and textiles can be protected – they are seen as creative and independent of any functionality and akin to a work of art outside the sphere of functional influence. Think of a print as an abstract painting, and you’ll arrive at the exact same conclusion that the U.S. Copyright Office did when it decided to extend protections to in the 1950s: Paint on canvas or ink on paper is not that different from dye on fabric when you analyze it from a graphic perspective. Ever since, textile prints and lace patterns have been copyrighted, and a designer doesn’t even have to register the copyright in order to protect it – though we would certainly recommend doing so.
Designers can register trademarks on their fashion designs, but those protections are also decidedly limited. Similar to copyright laws, designers cannot trademark any aspect of the design that is utilitarian in nature – the shape or functionality of the design always remains unprotected. Trademarks only offer protection for logos, brand marks, or other identifying symbols associated with a brand. If a competitor uses a similar logo that would likely confuse consumers, trademark law will protect that design. Colors can sometimes be trademarked, as well, but only when the color uniquely identifies the origin of the product. An easily identifiable example would be Christian Louboutin’s red sole, since the signature red sole is what identifies a Louboutin shoe to a consumer.
In some instances, designers can also file a patent on their work, which is the only protection available that would protect the actual design concept, but only when the ornamental elements dominate the functional elements. Design patents are especially relevant when a designer intends for an item in their collection to be a staple piece that will be reintroduced season after season in different forms and colors – think Valentino’s ornamental spike-studded heels and Celine’s Trapeze bag.
Fast Fashion’s Business Model
It may be a little clearer to you now, then, why retailers are able to copy designs and get away with it: the protections afforded to fashion designers are limited and often difficult to prove. Earlier we mentioned Christian Louboutin’s red sole as an easily identifiable item that can be and is trademarked. Despite this protection, in 2012 Louboutin lost a lawsuit against Zara, in which the designer sought to recover on Zara’s use of the red sole in one of their products, signaling “consumer confusion.” The court ruled that Louboutin’s 2011 trademark registration was too vague, suggesting he might specify a Pantone number going forward.
Though in the above instance Zara was indeed infringing on a trademark in a much riskier way, you’ll note that their overall business model tends to copy uncopyrightable elements of a design. The retailer doesn’t steal prints or logos, but rather copy shapes and aesthetics. In this way, Zara can maintain a certain level of prestige in design because their clothing looks high-end without being a carbon copy.
In many other cases, the threat of a lawsuit doesn’t deter a fast fashion retailer because the retailer has come to build in losses for copyright infringement suits into their business model. The best example of this model would be big-box retailer Forever 21, who has been sued and has settled claims over 50 times for stealing prints and designs from designers like Anna Sui, 3.1 Phillip Lim, and Diane Von Furstenberg. Since prints and textiles are copyrightable, Forever 21 has in many instances infringed irrefutably.
The company has come to regard copyright infringements as an unavoidable and overall profitable strategy for their business – they earn more money by producing and selling copied designs than any legal loss or public discord that may result from their infringement. In many cases, infringing on the copyright and settling the suit later is more cost-effective than licensing the design. Legal experts have noted that the company’s response in these cases is almost methodical: When Forever 21 settles a dispute over copying, it typically includes a non-admission of guilt, financial compensation to the designer whose work was copied, and a confidentiality agreement.
So when it comes to copying fashion designs, it seems that big companies are virtually worry-free. But is that necessarily a good thing? Does copying promote the fashion production cycle, or does it harm the work product of the world’s most talented minds in fashion?
Let us know what you think by leaving your comments below.
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.