Fast Fashion and Intellectual Property

As consumers demand the latest fashion trends at rapidly increasing speeds, fast fashion houses cut corners and often copy luxury brand designs. As a result, the issue of fast fashion and its intersection with intellectual property rights has gained unprecedented relevance in contemporary discourse. Duplications of products, or “dupes,” are marketed by influencers on TikTok and sold on Amazon. Online platforms have become notorious for selling fashion items that copy the designs of fashion houses for more competitive pricing. The discussion about design and copyright law becomes particularly pertinent when reviewing high-profile cases, like those of Steve Madden and the historic struggle in the fashion industry to balance innovation, consumer demands, and copyright protection. In regard to fashion, creativity is both celebrated and questioned, as the lines between innovation, imitation, and legality are blurred. The rapid pace of the fast fashion industry heightened by social media, poses a significant challenge to intellectual property rights, leading to a need for reevaluation and adaptation of copyright and intellectual property law to protect designers and creators.

Before 2017, one of the primary limitations in the United States regarding fashion designs and copyright was the lack of clear protection for clothing designs. The 1976 Copyright Act's omission of “useful articles,” like clothing, left fashion designs with insufficient copyright safeguards. Since such designs were often deemed utilitarian, or useful instead of for aesthetic pleasure, they were ineligible for copyright protection, and thus designers had limited legal recourse against unauthorized copying. This discrepancy led to dissatisfaction among fashion designers, who argued that other creative industries, such as music, literature, and visual arts, enjoyed more comprehensive copyright protection. In 2017 these concerns made it to the Supreme Court when the case Star Athletica, LLC v. Varsity Brands, Inc. discussed the issue of whether certain designs on cheerleading uniforms were eligible for copyright protection. The Supreme Court established that a “useful article” was eligible for copyright protection depending on its separability and its ability to be independently copyrightable[1]. Therefore, if a design element can exist independently and is eligible for copyright protection on its own, it can be considered separately from the functional, or utilitarian, aspects of the “useful article.” Star Athletica, LLC v. Varsity Brands, Inc., implies that only specific aspects of a designer’s creations, rather than the entirety of their garment, receive protection [2]. This decision increased the copyright protection for fashion designers and decreased legal ambiguity in fashion law.

However, despite this decision, from Shein to Zara, certain fast fashion companies and companies looking to create product duplicates remain undeterred and continue to profit off of small business designs or popular luxury couture styles. It's important to note that copyright protection has limitations, such as the subjective distinction between drawing inspiration from a design or outright copying it. Steve Madden v. YSL is a case exemplifying the discourse over inspiration and imitation. In 2018, Yves Saint Laurent filed a lawsuit against Steve Madden on the grounds that Steven Madden (SM) infringed the design of YSL’s patent “Tribute” sandal, as Steve Madden’s “Sicily” sandals, from afar, can be mistaken with the “Tribute” shoe. However, SM claimed that the two shoes could never be confused for one another — because Steve Madden’s is a flat and YSL’s is a high heel — and YSL’s lawsuit was an attempt at inhibiting competition [3]. According to the court, YSL had provided reasonable claims suggesting that the toe-bed and high heel design of the “Tribute” designs were unique and served a distinctive, non-utilitarian purpose. However, despite this, the court decided that the brand had not sufficiently demonstrated that the flat design of the “Tribute” was unique or served a distinctive, non-functional purpose. Although the lawsuit was settled outside of court for reasons not disclosed to the public, it would have been interesting to see how the court would have ruled in 2019 considering the decision in Star Athletica v. Varsity. Ultimately, it remains clear that Steve Madden is not afraid to confront industry giants, and overall, the ambiguous copyright protection laws in fashion design only further blur the line between inspiration and imitation.

While legal battles such as Steve Madden's dispute with Yves Saint Laurent shed light on the complexities of copyright protection in the fashion industry, the proliferation of “dupes” by fast fashion houses continues to reverberate across the design landscape. This trend not only impacts smaller brands but also raises ethical questions about intellectual property and market competition. Fast fashion has revolutionized traditional fashion, with Steve Madden and other contemporaries actively participating in a cycle of supply and demand whilst stifling creativity. Shifts from traditional fashion giants to modern players like Shein reflect a dynamic where trends swiftly transition from their conception to consumer shelves. Earlier this year, UNIQLO sued Shein for violating Japan’s Unfair Competition Prevention Act by imitating one of its popular shoulder bags [4]. Lawsuits like these highlight the importance of safeguarding products from imitation by brands since the current ambiguous fashion law gives brands leeway to create imitation products without being charged. Another lawsuit filed against Steve Madden was on behalf of Balenciaga, as they claimed Steve Madden created a cheaper version of their Motorcycle bag and filed a “trade dress” infringement suit. A “trade dress” describes the overall look and feel of a product, ranging from the label to the production, or even its decor [5]. Lawsuits like these raise ethical dilemmas about intellectual property and market competition. Imitating the creations of a brand infringes on their intellectual property, and although market competition is healthy, if Steve Madden is producing designs that are similar to Balenciaga’s, it raises SM’s business practices and their exploitation of another brand’s designs. The dilemmas surrounding intellectual property rights emphasize the need for clearer laws to prevent imitation and exploitation of other brands’ designs.

Supporters of product duplicates may contend that design replication is intrinsic to the fast fashion market, fostering healthy competition and making fashionable items more accessible to a wider audience. However, the issue arises when these "dupes," particularly those made by small brands or fast fashion houses who likely engage in unethical working conditions, profit at the expense of original designers. Designer of Mirror Palais, Marcelo Gaia, claims that:

I’ve created this really beautiful special thing that I wanted to share with the world and now it’s actually the source of someone's misery. Someone is slaving away over these recreations of my dresses and probably being paid very unfairly and probably working in really bad conditions [6].

This testimonial serves as a poignant reminder that the allure of affordability and accessibility should not eclipse the human and ethical costs associated with the replication of creative works in the fashion industry. From a legal perspective, copyright infringement is a significant issue. Designers invest time, effort, and creativity in bringing their sketches to reality. Copyright laws exist to protect these intellectual property rights, ensuring that creators receive compensation for their work. The unauthorized replication of designs not only undermines the economic value of the original creations but also poses a threat to the sustainability of the fashion industry as a whole. Some imitations surpass healthy competition and threaten the integrity of original designs, increasing the need for stronger enforcement of copyright laws within the fashion industry to uphold the intellectual property of artists.

In addition to the onslaught of problems associated with the blurred lines between inspiration, imitation, and replication in fashion design, the promotion of cheaper duplicates by influencers and celebrities can contribute to unfair competition in the fashion industry as original designers may suffer financially as consumers opt for more economical imitations. With the popularization of social media and the internet, society is constantly influenced by popular celebrities, and in the case of fashion, whatever celebrities wear tends to influence what customers buy. Furthermore online fashion communities, especially those built by influencers, emerge as powerful forces, shaping trends that fast fashion brands quickly replicate and introduce to the market for cheaper prices. The research-driven website “The Fashion Law” claims that web searches for Skims dupes are double that of the original product and that TikTok influencers are complicit in this phenomenon [7]. Platforms like TikTok and Amazon, where product duplicates and counterfeits are widespread, should actively work to restrain the growth of “dupe” culture. For instance, TikTok can implement more guidelines to prohibit influencers and users from disseminating content that violates intellectual property rights. Overall, the unclear boundaries in fashion between inspiration and imitation are worsened by influencers and celebrities promoting cheap product duplicates, thus urging platforms like TikTok and Amazon to take action to combat “dupe” culture and protect intellectual property rights.

The complexities of fast fashion, intellectual property rights, and ethical concerns surrounding design replication are not to be underestimated as their impact on original designers emphasizes the need for reforms in copyright law. Additionally, the role of influencers in propagating “dupes” raises both economic and ethical challenges in the fashion industry that further prove the need for clearer statutes. In light of the increasing number of lawsuits related to copyright and intellectual property infringement, is it appropriate for the legal system to prioritize the protection of design intellectual property, or is it unreasonable for a company to face legal action merely for having a design closely resembling another? If we draw a parallel between design infringement and academic plagiarism in terms of ethical standards, Steve Madden and Shein's actions would be deemed reprehensible. Why aren't similar standards consistently applied in both cases? The relentless demand for swift trends in the fast fashion cycle strains creativity while ethical issues arise from the proliferation of “dupes.” Lawsuits among fashion brands highlight the complex task of safeguarding creative expressions within the confines of copyright limitations. To address these challenges, it is imperative for platforms like TikTok and Amazon to implement stricter guidelines to safeguard intellectual property rights and mitigate the proliferation of dupe culture. Additionally, reforming legal frameworks could entail advocating for improvements in design patent laws to make it easier for designers to protect their designs and establishing special panels or courts with expertise in fashion law so that there are more consistent rulings on design infringement cases. Overall, advocating for legal reforms that enhance the protection of design for brands should be a priority, and the courts must play a more active role in upholding these rights.

Sources

[1] “15-866 Star Athletica, L. L. C. v. Varsity Brands, Inc. (03/22/2017),” 2017.

[2] Ibid.

[3] “Steven Madden, Ltd. v. Yves Saint Laurent, 18-CV-7592 (VEC) | Casetext Search + Citator,” accessed March 3, 2024, https://casetext.com/case/steven-madden-ltd-v-laurent.

[4] “Uniqlo Sues Shein in Japan Claiming Imitation of Shoulder Bag | Reuters,” accessed March 3, 2024, https://www.reuters.com/business/retail-consumer/uniqlo-sues-shein-japan-over-sale-round-shoulder-bag-2024-01-16/.

[5] “Balenciaga Puts Its Foot down Again with Steve Madden,” Lexology, June 5, 2014, https://www.lexology.com/library/detail.aspx?g=3f134ac6-35a9-4ad5-a366-48e6e299ed83.

[6] “Mirror Palais on TikTok,” TikTok, accessed March 3, 2024, https://www.tiktok.com/@mirrorpalais/video/7129322686655778091?_t=8V6pDgbllnu&_r=1.

[7] TFL, “Searches for Dupes Are Beating Out Those for the ‘Real Thing,’” The Fashion Law, November 28, 2023, https://www.thefashionlaw.com/for-some-brands-searches-for-dupes-top-those-for-the-real-thing/