It's every fashion designer's worst nightmare to have their designs copied. Just imagine, after spending days on end creating an original collection, from fabric sourcing to the gruelling sampling stage, then BOOM, you see an exact replica online. Fashion and copyright infringement have been dancing with each other on a very thin line for a long time. Many query what is the difference between inspiration and impersonation? It is a very difficult and common issue found in the fashion industry, it's easy to find your favourite designer piece replicated by a high street fashion store but the question we want to address is, is it legal and is it fair?
What is Creative IP?
Creative IP is the intellectual property law that protects creative professionals and businesses. The sad news is, copyright law doesn’t protect fashion, in the UK it is difficult to protect a garment with this law. According to the law firm Osborne Clark "a work must fall within a pre-existing category outlined in the Copyright Designs and Patents Act 1988, which includes works of artistic craftsmanship as one category."
The judgment from the Intellectual Property (IP) and Enterprise Court allows fashion designers to use copyright protection on a much wider basis to prevent copying of their designs. Works of fashion and creative works that can be protected by infringement law can include the following:
a craftsman, in that they made the fabric in a skilful way, taking justified pride in their workmanship; and
an artist, in that they used their creative ability to produce something that had aesthetic appeal.
a substantial part of the product had been copied
In October of 2020, the well known playboy brand, sued US retailers Fashion Nova, for copying its iconic bunny costume and piggybacking off its popularity and name for Halloween. Not only did Fashion Nova copy the design, they used it in their advertising as they described the Halloween outfit as ‘Bunny of the Month,’” which Playboy argues is “a clear and unauthorised reference to its famous "Playmate Of The Month" trademark, which began in 1954 connected to the Playboy magazine.” This is an ongoing court case and a verdict has not been made yet but this is a clear example of how a fast fashion company can profit from other brands and draws a thin line between inspiration and impersonation.
IP Harbour
Is it legal to copy a design?
As we all know trends are often recycled and seasonal runway shows see designers parade the runway with models dressed in what can be described as "avant-garde" pieces. These shows are not to market the actual designs but often used to create a buzz about the brand itself. These runway designs are trickled down and sold commercially in highstreet stores as "inspired" replicas, this sets the trend and so the cycle continues.
Believe it or not, some designers unintentionally steal designs. Fabric suppliers and garment manufacturers, are well known for selling on designs wholesale without their clients knowing, so even if you are to create your own print or original design, there is still room for it to be copied by your manufacturer. This of course can be mitigated if using in-house manufacturing and having a vertically integrated team, such as Zara.
Recently, in the US, rapper Megan Thee Stallion was accused of stealing designs from independent brands for her Fashion Nova collection, which racked in over $1.2 million in 24hours. Megan addressed the allegations in a Morning Hustle interview on Tuesday, but what happens when a big brand copies a small independent brand? Copyright law provides a relatively small amount of protection to smaller brands and the cost of going to court can be so high that most independent brands take to the "court of Instagram and Twitter" to get justice for their brand.
How do I stop my designs being copied?
This isn't the first time a celebrity has been accused of stealing a design and as designers get more and more transparent, sharing their ideas and upcoming releases on the Internet, what can one do to protect themselves? Founder of Farai London, recently saw her sold out "Delilah" piece replicated on the marketplace Aliexpress for almost a tenth of the price, she advises designers to use custom prints as they are harder to replicate.
It's almost impossible to stop someone from copying your designs, even the biggest brands such as Chanel and Louis Vuitton are copied on a daily basis. It's best to try and navigate your way around it. Having distinctive prints/shapes or innovative designs makes your items much more noticeable and fakes can be easier to recognise by your audience. Also trademark law, protects a designer’s name or logo, so if you're able to incorporate your logo into your print you're far more protected in the likelihood it is copied.
We know it's not fair and the issue of copying gets worse as designers get more and more transparent, wanting to share every stage of their design development with their audience, we hope that in the future more laws come into play to better protect designers and their workmanship.
Copyright is changing in January 2021 and if you would like to read more about it on gov.uk
Written by Misi Chanel, 2020