The Reason Why Corporations Can Legally Get Away With Copying Fashion Designs

August 25th 2016

Whether you know it or not, your clothing is likely part of a cycle of counterfeit production.

But it’s not your fault: From the runway to your local mall, the fashion industry is built around a knock-off economy, where copycats are rampant and authenticity uncertain. Why is that?

The reason lies in the functionality of clothing.

“Copyright protection doesn’t extend to fashion, because the copyright office has decided all fashion is functional,” Susan Scafidi, a professor at Fordham University and the founder of the Fashion Law Institute, told ATTN:. "It has taken years for certain ornamental aspects of fashion, such as fabric, surface treatments, and jewelry to get copyrighted."

As a result, designers are left vulnerable to being copied and at a disadvantage, according to Scafidi. Even the U.S. Copyright Office states that the protection of the designs of useful articles, such as clothing, is extremely limited:

"The design of a useful article is protected under copyright 'only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.' According to the House report accompanying the copyright revision bill, the test for separability can be met by showing either physical or conceptual separability. The purpose of the test is 'to draw as clear a line as possible between copyrightable works of applied art and uncopyrighted works of industrial design.'"

While fashion designs are not protected under the U.S. Copyright Act, certain ornamental elements of a design can be protected through design patents.

In a blog post, Christiane Schuman Campbell details how designers can obtain protection for their fashion designs by applying for a design patent:

"Design patents protect the look of a design, or ornamentation, as long as it is novel, nonfunctional and nonobvious to a designer of ordinary skill in the art. When applying for a design patent, the designer must claim certain features of the design that are to be protected; therefore, the patent is directed at the basic design concept, not the exact product the designer sells."

The aspects that are protectable include "original prints, patterns, unique color arrangements and novel combinations of elements used on a design," writes Campbell.

In an interview with ATTN:, Campbell offered an example to illustrate this point: "A belt itself is functional, but you can separate out which part of that belt is purely creative, aesthetic, and not related to function." However, "it's difficult to draw that line between what's functional and not," said Campbell.

Legislation for more protection over fashion designs has been difficult.

Designers have been fighting for more protection over their work for nearly a decade, but the latest attempt was the Innovative Design Protection Act of 2012. The Council of Fashion Designers of America describes it as extending "intellectual property protections to never-before-seen fashion designs while preserving the industry’s ability to explore trends and conduct business without undue interference. Most importantly, this legislation significantly clamps down on frivolous lawsuits by clearly defining the infringement standard allowing trends to flourish at top speed."

The bill reached an impasse due to bad timing and the difficulty of persuading the Senate Judiciary Committee, which oversees intellectual property law, according to Scafidi, who testified in front of Congress as an academic expert on the fashion industry.

According to Campbell, the Copyright Office required more information: "They needed it to be fleshed out, because it's very difficult to draw the line between functional of not."

In the meantime, what can designers and consumers do?

Both our experts made the same recommendation: Designers should be proactive about registering the design elements that can be protected, i.e. ornamental aspects of their designs, such as trademark logos, fabric, and jewelry.

"Designers should be armed with knowledge and be as proactive as possible — taking preemptive measures, such as making careful documentations, registering with the copyright office, branding things with a unique logo or brand name — these all lend themselves better to copyright protection and are their best weapon," said Campbell.

Outside of copyrighting, technology and the Internet serves as a double-edged sword when it comes to design protection. According to Scafidi, the advancement of technology has changed fashion in favor of copycats. "In the '60s, it took a long time to make a copy — you had to sneak into a show, sketch a design, then reproduce it. We had primitive photography methods compared to cell phones today."

Today, "fashion shows are livestreamed on internet in 3D as they’re going down the runway with no time lag, and cell phones are ubiquitous. People can take surreptitious photos, making things much easier for copyists," said Scafidi.

Fortunately, there's one silver lining for designers: Social media as a form of whistleblowing. "It can help shame a company and enabled a grassroots movement to evolve and support emerging designers who get knocked off, so they might not need attorney," said Scafidi. She added that public shaming of a company often results in stopping production of the design and in some cases, a quiet settlement.

Recently, followers of independent illustrator Tuesday Bassen sent her photos showing her designs, which were allegedly copied by Zara. Bassen subsequently took to social media to call out the company.

Designer Penelope Gazin, who has started her own curated online marketplace for artists called Witchsy, has had her patch designs stolen before, too. She told ATTN: via email, "Half the fun of wearing weird cool stuff is discovering it and being the first to find a designer or trend...Art is about risk and there's nothing risky or authentic about a multi-billion dollar company run by a 50-year-old white dude."

Scafidi had a similar sentiment: "The most difficult thing to get across to some consumers is there is a victim. For emerging or independent designers, [copying] does cut into their income terribly." For those who do care, she suggests trying to find original fashion that you can afford, utilizing websites such as Etsy: "If you love fashion, go out and find it."

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