Copying in the fashion industry is news to no one at this point, though accusations do seem to pop up more frequently now that everyone has a platform on social media. But accusations can only go so far, and the U.S. laws surrounding copyright are complex and often futile in a fashion context. Law itself can seem antithetical to the industry, which is creative in nature, but understanding it is crucial to running a successful business.
No one has done a better job of uniting these disparate worlds than Julie Zerbo of The Fashion Law, whose background in both industries has allowed her to introduce fashion fans to the technicalities of copyright law in a way that is both accessible and entertaining. We called her up to chat about the state of copying in the industry today, and to find out why it’s still ridiculously easy to get away with.
Scroll down to see what she had to say.
How would you describe the state of copying in the industry today?
The laws in the United States, particularly copyright law, do not provide much [for designers]—they’re not really a friend to fashion. Because shoes, clothes, purses, etc. are useful in nature, copyright law doesn’t protect them as a whole. So, footwear designers can’t build a case upon really standard shoe designs, even if they’re done in really beautiful colors that draw us to their brand. Granted, there are elements of their shoes that can be protected … that are really special. If a designer adds a really unique sculpted heel, that’s probably protectable. But a basic mule? That’s not.
What do you make of designers’ reactions when they think they’ve been copied? Is there an appropriate or inappropriate way to respond?
Designers get very upset when they think they’ve been copied. Most commonly we see this when they’re copied by fast-fashion retailers, because with the way that millennials are shopping—their wardrobes are filled with high-street and high-fashion items—the threat that they will go buy the copy is greater than ever before. It’s a very frustrating thing for them, and if it’s one of their peers, instead, then it’s a completely different animal.
But these reactions just highlight that they don’t have [the tools] to ensure that their designs aren’t copied, and to me that’s the most frustrating part. Regardless of what stage they’re at in their career, they really don’t feel like they have a lot of options when they’ve been copied.
Do you think that designers should always call out copying when it happens?
In law, before you file a lawsuit, you tend to write a letter that says, We know that you’re copying, and here’s your chance to make it right. Going behind the scenes and playing nice seems like the best first option, but I guess there are some benefits to putting it out there, too.
And emotions play a big part in this, because when designers are copied, it’s personal. Especially young designers—and when I say young I just mean not established—it is personal because they don’t have huge teams of people creating their designs; it’s still very much coming directly from them.
What do you think should change? What options do you think designers should have?
There have been proposed laws that have been put in front of Congress, but none of them were quite perfect, hence why they never came to be. I think that, at this point, since the government process is so slow—and I have worked firsthand on these matters, so I’ve seen just how slow it is—what designers can do is do the work to distinguish themselves. So, they can add a print, for instance—prints are easily copyrightable if they’re original. If someone copies your print, you can easily sue them for copyright infringement. Or they can use a distinctive logo on their designs; if that logo is copied, that’s trademark infringement.
But I always say if you’re good, you’re going to be copied, and if you’re really great, you’re already going to be a few steps ahead, innovating for next season. So unfortunately in the United States, where there aren’t laws that are easily accessible for most designers, it’s just part of the game, so to speak.
There are design patents that could apply in a lot of these cases, but they’re very complex and very expensive—they cost thousands of dollars—and [getting them] is a time-consuming process. They aren’t necessarily [worth it] for a lot of items in fashion because of how inherently seasonal it is and how quick the turnover tends to be.
Can you give me an example of a brand or an item that has a design patent?
Absolutely. Just about everything that we see from Nike and Adidas—all of those shoes are protected by design patents. For a more fashiony example, I know that a lot of Céline bags are protected by design patents. Footwear in general is often protected by design patents, whether it be from Hermès or Jimmy Choo. And design patents are usually held by houses that have the resources and that plan on reintroducing the style in question or have it be a big seller. Lululemon sold pants a few years ago [with a fold-down waistband], for example, and those are protected by design patents because they know that so much of their business is based around this style of pant and that they’ll regularly reintroduce it, so it was worth spending the time and money to procure that type of protection.
How long does receiving a design patent usually take?
At the minimum, two years. And it’s expensive! Trademark protection costs less than $500, copyright protection is basically free, [whereas] design patents cost thousands and thousands of dollars.
Do trademark protections and copyright protections take just as long to get, even though they’re cheaper?
Not nearly as long as that. Copyright protection applies automatically once you create something original—you write it down or you take a picture, and it applies. You then have to register it, but that’s an easy process. Trademark takes a little longer because, in essence, trademarks are a tool for consumers to identify a product—so when you see the gold LV-and-flowers monogram against a brown bag, you know, automatically, that’s Louis Vuitton, but it’s taken decades to get to a point where everyone knows that’s Louis Vuitton. So while they had rights in that for years, it only really [became] valuable to them once people started identifying it as their trademark. It’s all very technical, which is why it’s so frustrating for a lot of designers—they’re not lawyers.
What I’m getting from a lot of what you’re saying is that it’s the younger, newer designers who get hurt most by copying and the lack of protections out there.
Yes, they are, unfortunately. All fast-fashion retailers seem to target them because they know that they’re less equipped to fight [against it], but that’s not to say that those retailers don’t [also] copy big brands. Céline is copied a lot, as we know, so it really does run the gamut. But I’ve found that emerging designers are hit particularly hard, and they don’t have the resources or the know-how to put up an adequate fight.
Do you think the industry overall has a responsibility to help them more than they’re doing now, or do you think it’s, as you said earlier, just part of the game and something designers must deal with?
I think that in the United States we’re not necessarily doing enough. Designers in other countries, particularly our international fashion competitors (in the U.K., in Italy, etc.), they have other laws in place to protect against copying like this that make it a bit easier for designers to protect their original work.
I think that what we have now that is a benefit to designers—well, it’s a double-edged sword—is social media, and having the Internet, which gives designers a place to say, Hey, you copied me. That’s a big asset. One of my first big stories was about a major fashion house showing a bracelet that looked very similar to one created by a small New York designer a year or two before, and the big house ended up not producing the bracelet. So people really do have a voice now. I mean, do the fast-fashion retailers really take notice or pull an item the way this major fashion house did? No, not usually, but it leads to an increased level of awareness, which is a big asset to designers. Tweeting or writing a blog post is much less expensive than legal counsel, and a lot of times, there isn’t anything legally that they can do anyway, so the Internet gives them a platform to educate their customer about [what’s going on].
Why do you think that fast-fashion retailers are less likely to pull the item than a major fashion house?
I think that there’s just a different mentality. Fast-fashion retailers amass their fortunes based on this, and when you think of those companies, design integrity is not what comes to mind. High-fashion houses, on the other hand, are still very much founded on the idea that they are furthering creativity and innovation in fashion. I think that due to their luxury status, they have more to lose, in terms of their reputations. Everything bad that you can say about a fast-fashion retailer, most of them have already been confronted with.
Where do you think fast-fashion stores should draw the line in terms of reinterpreting the trends? Because I do feel like it’s fair for people with less income to have access to the trends we see on the runway, but I also agree that the products shouldn’t be direct copies.
I think the democratization of fashion is a good thing, keeping the ethical concerns out of it for now. I think that [being inspired by the trends] is completely acceptable. Fashion is an industry that thrives off of inspiration—so much of what we see nowadays in fashion has been done before, and so I don’t think inspiration is bad thing. I do think that imitation posing as inspiration is a bad thing. When the copies are true stitch-for-stitch copies, that’s when it just doesn’t feel right, and I think that’s where we’re getting ourselves in trouble as an industry. I don’t see any innovation [or] anything positive coming from that.
You know, we see trends among high-fashion designers, and we don’t think twice about that. Everyone’s been showing lingerie-inspired looks on the runway these past few months, and we don’t bat an eyelash, but it’s when someone takes it a step further and re-creates [an exact] look that went down the runway, that’s when it’s problematic.
Do you think the U.S. should make changes to further protect designers? Sound off in the comments, and learn more about fashion law with the two titles below!
The Little Book of Fashion Law by Ursula Furi-Perry ($17)