November 19, 2018
Originally posted 2018-11-19 11:20:24
(By Kelsey Laugel – www.amdlawgroup.com)
At the 2015 Billboard Music Awards in May, Nasty Gal, an American-based retailer that specializes in providing more affordable versions of designer clothing, claimed credit for Taylor Swift’s white Balmain jumpsuit. For comparison, the average Balmain jumpsuit can cost anywhere from $2,000 to $6,000 while the Nasty Gal version retails for $78. After copying Balmain’s design and then tweeting to claim credit for it, Nasty Gal received instantaneous backlash and has since deleted the infamous tweet. In spite of the negative attention, or perhaps because of it, Nasty Gal has since sold out of their knockoff version of Taylor’s white jumpsuit.
While it is possible that Nasty Gal will endure legal repercussions for the false advertisement via Twitter, people might be surprised to discover that they likely won’t face any consequences for knocking off and selling the Balmain original in the first place. United States law generally does not extend copyright protection to fashion designs, although American designers are working toward changing this tradition through Congress.
Retailers like Forever 21 and H&M have built their success off of this very practice. Forever 21 especially has been sued over 50 times for allegedly copying and selling the work of expensive designers for a fraction of their original price. However, regardless of the multiple lawsuits brought by such big names as Mansur Gavriel, Anthropologie, Granted Clothing, Anna Sui, Diane Von Furstenberg, and Levi Strauss, Forever 21 has never actually been convicted of trademark or copyright infringement.
Mansur Gavriel – $495.00 Forever 21 – $29.90
Most assume that this is because Forever 21 settles outside of court. Some even speculate that this is part of their business strategy; if licensing is more expensive than settling when sued, then it makes sense that Forever 21 does what they want and then pays up when caught without worrying about licensing in the first place. However, Forever 21’s creative director swears the company has never settled a lawsuit. She claims that this is because Forever 21 does not actually manufacture the goods, but merely sells them.
In some ways, copying can be a good thing for the fashion industry. It can benefit designers in that it draws attention, exposure, and publicity to the original designs. It is good for the fashion industry in general because it bolsters the fashion cycle, encouraging designs to come into fashion more quickly, go out of fashion faster, and then in turn inspires designers to come up with something new as a result. It also helps consumers by breeding competition, which gives them a choice they wouldn’t otherwise have by allowing them to choose between more expensive and more affordable trendy options.
Regardless, the legal industry has perpetuated a gap in the protection of the designs created in the fashion industry. Since copying a clothing design is not protected in the United States, intellectual property law has had to stretch to protect bits and pieces of fashion design. For example, trademark law can be used to protect things like the clothing’s label, branding, and packaging. Meanwhile, copyright law often protects designs for jewelry and unique prints and patterns, and patents can be used to protect functional elements of designs, such as zippers and buckles. But apart from these, the fashion industry suffers from a gaping hole in the area of legal protection for its designs.