The world of fashion can be a battlefield full of stolen designs, styles, and patterns. And although U.S. copyright laws were not established until 1979, unfortunately, they were not created with protections for fashion in mind. U.S. copyright laws were written to protect “original works of authorship.” This broad definition protects creative works including dramas, literature, songs, and art. U.S. copyright laws do not protect against useful things including accessories or clothing.
Because there are no set regulations, rules, or guidelines to protect fashion industries and their designers, what you will often have are fashion brands and designers that copy one another. Typically, these designers follow whatever style and design that is trending at the moment and will settle on that in their designs.
The Rise of Fast Fashion and Stolen Designs
Fast fashion has dominated the fashion world throughout the past decade. Fast fashion refers to the quick manufacturing and distribution of garments. At the start of America’s industrial revolution, there were two clear fashion seasons, summer and winter. As the American economy grew, these two fashion seasons transformed into four; summer, fall, winter, and spring collections. These distinct fashion seasons were soon overhauled by a boom in the fashion industry in the early 2000s and the 52 seasons of fashion, one for each week of the year, quickly became the norm.
Clothing that falls under fast fashion will often use cheap, low quality materials and the trends and styles used will mimic other fast fashion designers. It is in the fast fashion world that stolen designs from brand to brand are rampant and designers can mimic other designers without much legal backlash.
American Copyright Law Does Not Protect Fashion Designs
Fast fashion designers including brands like Zara, H&M, and Forever 21 have a history of stealing designs and styles from one another, and under American law, there is not much that can be done to stop it. One of the most popular types of stolen styles is monogramed shirts or shirts with popular phrases like “Thankful”, Fri-yay”, and “Boss Lady.” With many of the terms used by these fashion brands, there are no trademarks that the designers have to contend with, so designers are free to use popular terms that other designers may use. Even if a phrase is written in a specific type of font, the designs are typically fair game unless that font is a trademarked design.
One popular example of fashion brands stealing other designs is the battle between a large fashion brand and an independent, smaller fashion designer. Independent designer Carrie Anne Roberts, owner of Mere Soer recently found herself the victim of fashion fraud when American brand Old Navy stole one of her most popular designs. In her adult collection, Roberts sold an adult shirt that had the phrase “Raising the Future”. She also had another shirt designed for young children that read, “The Future”. After launching her shirts, Fashion giant, Old Navy, began selling a similar shirt with the same phrase in similar typography. After a public outcry by Roberts’ supporters, the independent designer found herself unable to pursue legal action because the phrase was not something that Roberts trademarked, meaning Old Navy was free to use it. In good moral favor, Old Navy did end up pulling the shirt off of its website, though they continued to sell it in their brick and mortar stores.
When Can a Fashion Designer be Sued?
Although there are no cut and dry laws applicable to the fashion world, that does not mean that fashion designers won’t find themselves in hot water every now and then. Depending on the designs used, fashion brands can sometimes be susceptible to lawsuits if they use a phrase, slogan, or design that is trademarked by another individual. Typically, however, fashion brands do not usually pursue trademarking specific styles or designs, unless it is of their own brand. For example, brands would not be allowed to duplicate a shirt with the logo of the popular brand “Patagonia” on it, because that term and its design are trademarked by Patagonia. Because brands can easily be identified by their brand name, and brand names are typically trademarked, big fashion brands will not create designs that feature that brand name on them as that would be a violation of copyright laws.
The only other instance in which a fashion house can be sued for stealing a brand is if there is a piece of art of print on the clothing that can be separated from the functional elements of the clothing and can be classified as an “original work”. Original works including prints and artwork are protected under copyright and once an artist creates that work, they are the one who has ownership of it and can decide who does and does not use it.
Take, for example, fashion designer Roberto Cavalli. This Italian designer created a spring and summer collection of ladies’ garments in 2014 that was designed using inspiration from street artists that created street art in San Francisco’s Mission District. The street artists sued the designer for using their artwork without permission. The artists, Victor Chapa, Jeffrey Rubin, and Jason Williams argued that Cavalli violated the Lanham Act (false designation claim of origin) and that their street art was used throughout the designer’s 2014 collection. In cases like this where the artwork can be separated from the clothing, fashion brands can be held liable for stealing designs that are not theirs. In the Supreme Court case or Star Athletica v. Varsity Brands, the courts ruled that brands may be able to find some protection under copyright law if their case falls under this “protection by separation” method.
How about High End Fashion?
In America, fashion houses do not have a rich, rooted history, and the laws reflect this as there are no detailed laws that protect fashion designers. In Europe however, the opposite is true. Popular fashion houses that have been around since the early 20th century including Gucci, Prade, Chanel, and Balenciaga enjoy protections that are not found in the U.S. In countries including France, Italy, Germany, and Scotland, there are extensive laws regarding fashion houses, their designs, and who can and cannot use them. Protections go beyond just fashion houses. Certain textile companies that have been around for an equally long time can also enjoy protections over their original productions as well. It is because of this reason that fashion brands in the U.S. do not recreate designs that bear designs synonymous with high end brands.
Designers May Find Protections Under Trade Dress
Some brands including Michael Kors, Calvin Klein, and Coach all have unique designs, feels, and aesthetics to their brand. For example, Michael Kors bags are known for their stiff, sharp angles and wide base, and narrower openings while Calvin Klein helped revolutionize the sports blazer. With some brands, their appeal and design style has become so iconic that their designs are synonymous with the brand immediately. In cases like this, some designers may be able to find protections over the recognizable features of their designs through a trade dress.
A trade dress is when the technical components of a design including proprietary material, the shape or design of the material, or even the color scheme can be offered protections that would prevent another designer from copying the product. Under the Lanham Act, trade dress protections can be registered with the U.S. Patent and Trademark Office (USPTO) and can be offered protection under a trademark. The downside of a trade dress protection is that the process to obtain one can often be cumbersome, lengthy, and expensive.
With the emerging number of independent designers flocking to popular markets such as e-commerce, it’s likely that big fashion brands will continue to evade the laws in their use of another’s fashion designs and styles. On the flip side, however, as the world of design continues to expand in the United States, it is possible that laws protecting designs and designers will expand as well. Until then, it will be up to the court of public opinion to decide when a brand has gone too far with stolen designs.