Copyright Patents Trademarks

How Fast Fashion Retailers Built Billion-Dollar Businesses by Stealing Designs

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.License Art

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.legs and shoes fashion

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.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

2 Comments

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • Nicole–

    “… 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.”

    Is there a source/citation for this particular case?

    • Hi AC,

      Thanks for your question. I did some digging of my own before publishing and this particular case was hard to locate since it’s 200 years old. But you can read an iteration of this ruling in Brandir International, Inc. v. Cascade Pacific Lumber Co, which states “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.”

      Hope that helps!

Orangenius

We built Orangenius to help creators succeed. Our comprehensive platform takes the guesswork out of the business of art, so you can focus on creating. Click to see how Orangenius is revolutionizing the creative economy.

JOIN FOR FREE

The Latest From Artrepreneur

  • A Recruiter’s Advice for your Video or Motion Design Reel

    Creative Circle recruiter Brooks Rowlett sifts through hundreds of motion design reels and video editor portfolios each week. Here, he shares his best advice for motion designers and video editors looking to land their next big gig. The post A […]

  • From Tattoo Artist to Brand Empire: The Rise of the Ink Mogul

    The savvy tattoo artist uses brand recognition to launch a multimedia business. These four artists have leveraged their underground celebrity status to build a brand empire, complete with product lines, book deals, and TV contracts. The post From […]

  • Exploring the Intersection of Art and Technology

    The advent of technology is re-shaping the practice of art. These educational institutions, artists, and startups are exploring art and technology's convergence in today's increasingly digital world. The post Exploring the Intersection of Art and […]

  • Work with an Artist Mentor to Get Your Career on Track

    Many of the world's most recognized artists sought inspiration and guidance from their peers. Gain insight into your practice and learn about the business of art by finding an artist mentor whose career aligns with your own vision for success. The […]

  • Why Artists Need to Make Copyright Registration a Priority

    Sharing, posting, and distributing your work online is easier than ever - but often times, visual artists find themselves dealing with online piracy issues as a result of that practice. Initiating a copyright registration routine can curb the […]

  • How Artists on Social Media Can Grow Their Following

    By sticking to the tenets of the social media pyramid, artists on social media can develop an engaged audience. The post How Artists on Social Media Can Grow Their Following appeared first on Artrepreneur. […]

  • How [and Where] to Submit an Art Fair Application

    Submitting an art fair application doesn't have to be an arduous process. We break down which fairs are currently accepting submissions, and how you should apply. The post How [and Where] to Submit an Art Fair Application appeared first on […]

  • The Paperwork Behind Your Art Business [Part I]

    In this ongoing series, we'll review the various documents needed to get your art business up and running. First up: Crafting your artist proposal. The post The Paperwork Behind Your Art Business [Part I] appeared first on Artrepreneur. […]

  • A Creative Career Coach Outlines a Strategy for the Working Artist

    Marc Zegans coaches artists planning the next move in their art careers. Here, he shares his proven approach for developing your practice as a working artist. The post A Creative Career Coach Outlines a Strategy for the Working Artist appeared first […]

  • How One Artist Uses Instagram to Land Consistent Illustration Gigs

    Illustrator Maria Luque's secret to landing a steady stream of illustration gigs? Just be consistent and post regularly on Instagram. The post How One Artist Uses Instagram to Land Consistent Illustration Gigs appeared first on Artrepreneur. […]

  • Artists Who Failed – And Found Success Anyway

    Some of the world's most successful artists weren't always so revered. Meet five artists who failed to develop their art careers during their lifetime. The post Artists Who Failed – And Found Success Anyway appeared first on Artrepreneur. […]

  • How Do Online Content Moderation Policies Treat Nudity in Art?

    As Facebook's online content moderation policies come under fire, we review creative platform Orangenius' policy on nudity in art. The post How Do Online Content Moderation Policies Treat Nudity in Art? appeared first on Artrepreneur. […]

  • Self Employed? Five Ways To Get Into the Creative Habit

    Self-employed artists don't always leave room for inspiration. Boost productivity and get into the creative habit with these proven strategies. The post Self Employed? Five Ways To Get Into the Creative Habit appeared first on Artrepreneur. […]

  • A Creative in a Corporate Organization: Related Group’s Art Department

    In this ongoing series, we explore the creative roles available in the most unlikely of corporations. Our first installment talks to Patricia Hanna, the Art Director of Related Group. The post A Creative in a Corporate Organization: Related […]

  • Five Alternative Income Strategies for Independent Artists

    Independent artists shouldn't have to go hungry. We explore five alternative income streams to keep your art business on track. The post Five Alternative Income Strategies for Independent Artists appeared first on Artrepreneur. […]