Fast fashion isn’t known for its originality.
The entire industry, which also happens to be one the world’s most wasteful, is built around the idea that trendy clothes should be available to consumers at accessible price points. Sometimes that means altering a trend to make it a little more wearable for the average consumer ― but often, fast fashion brands produce garments that look like they were ripped straight from the catwalk.
How is that possible? How can they get away with copying other designs and not face legal consequences? We spoke to Julie Zerbo, a New York-based lawyer and founder of The Fashion Law, and Biana Borukhovich, a New York-based lawyer who practices fashion law, to get some insight.
High fashion is basically a muse for designer copycats.
Fast fashion retailers like Zara and H&M are able to produce and sell garments that look almost exactly the same as designs by luxury labels because “Essentially, in the U.S., we don’t have copyright protection for fashion design,” Borukhovich said.
Additionally, copyright law “does not provide exclusive rights for inherently useful items,” Zerbo said. Garments and accessories are typically considered “useful items,” she added, because bags allow us to carry things and dresses cover our bodies.
That means that brands like Fashion Nova can go ahead and recreate Kylie Jenner’s birthday outfits, and Nasty Gal can replicate a Balmain jumpsuit without much issue, especially if the garments in question do not contain any distinguishing logos, brand names or original prints.
In the case of garments with distinguishing logos, prints or brand names, “copyright law says that if you can separate creative elements of these useful articles from the utilitarian function of the useful thing ― the dress, for instance ― then those separable elements can be protected,” according to Zerbo.
That means that if you have a dress with an original print on it, that print can be protected because it can technically exist aside from the dress and the dress would still function without the print.
Logos, original prints and brand names are much easier to protect against copycats, Zerbo said, “assuming the logo or name has trademark-specific functions, which means consumers see that mark or hear that name and associate it with the brand that is using it.”
Basically, if one brand tries to copy another brand’s logo, especially something as recognizable as the Chanel double Cs, for instance, it could run into legal trouble for trademark infringement or potentially a counterfeiting lawsuit. For that reason, Zerbo said, we don’t really see many fast fashion brands selling clothes covered in lookalike logos.
What about when fast fashion rips off small, independent designers?
Fast fashion retailers don’t only copy designs by luxury designers. Sometimes, they go after the little guys, and, unfortunately, the lack of copyright protection for fashion design still stands.
“It’s not uncommon to see fast fashion giants actually infringe [on] small brands’ trademarks and/or copyrights,” Zerbo told HuffPost. “As for whether the small brands have the resources to enlist counsel and file a lawsuit is another matter entirely (usually they don’t have extra resources for legal counsel).”
Take the case of designer Tuesday Bassen, for example. About two years ago, Bassen, an independent designer, called out Zara for copying her designs. She shared comparison images on her Instagram account, along with correspondence from Zara’s legal team, which essentially told Bassen that she had no case against them because her work wasn’t recognizable enough.
Bassen, who expressed exasperation over having to spend “all of [her] money, just to defend what is legally [hers],” wasn’t alone in her accusations. As Zerbo wrote on The Fashion Law earlier this year, patches and enamel pins like the ones Bassen created have proven to be a “contentious issue” for designers and copycats over the past couple years.
According to Zerbo, it’s commonplace for some fast fashion brands to budget a set amount of money each year to pay settlements.
“That’s not necessarily an admission of guilt, it just might be the smarter move in terms of spending resources,” she said.
And of course, fast fashion brands aren’t the only ones copying designers.
High fashion designers copy other high fashion designers all the time. There’s even an entire Instagram account ― aptly titled Diet Prada ― dedicated to calling out all the designer copycats of the world.
So where do we go from here?
The role of fast fashion brands is to bring trends from the runways to the masses, and there are always going to be people who buy said clothes and accessories for various reasons.
But are fast fashion retailers and copycats intrinsically bad? Or are they just another part of the fashion industry?
Some people argue that fast fashion copycats dilute luxury brands’ allure. “If the luxury customer has seen that design in Primark or H&M, then they’re less likely to pay all that money,” fashion law lecturer Elaine Maguire told Business of Fashion.
For up-and-coming designers, copycats can be detrimental to building their business, especially because larger brands have the mass customer base and the funds that many indie designers don’t. The case of Zara and Bassen is a perfect example.
As Zerbo pointed out earlier, it’s an issue that emerging designers often can’t afford to be locked in a legal battle with a retail giant. And if a designer can’t afford to fight a company like Zara or H&M, it will no doubt be difficult for them to break into the market.
As Borukhovich said, for designers who consider their work to be art, seeing it get copied and diluted is almost like being “robbed.”
There are also some people who believe copycats actually add to the fast fashion world, Borukhovich added, because they speed up the trend cycle.
Her point echoes that of Christopher Sprigman, a law professor at New York University who once told Business of Fashion that copycats help create and, subsequently, destroy fashion trends, which just keeps the fashion cycle in motion.
“Without copying, the fashion industry would be smaller, weaker and less powerful,” he said.
It’s unlikely we’ll see fast fashion brands stop copying other brands and designers, both big and small, anytime soon. While it’s not necessarily admirable, recycling designs is commonplace in the industry.
As Zerbo put it, “Fashion is so inherently cyclical and it’s so inherently dependent on looking to others for inspiration, that it’s inevitable that there are claims of copying.”
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