Tailor-Made Fashion Regulation

A number of fashion designers recently accused Shein, the most popular online fashion retailer in the world, of stealing their designs. Their plight is all too common, critics argue, as the digitization of the fashion industry has fueled a concerning increase in “design piracy,” or the unlicensed copying of a fashion designer’s work.

Fashion industry insiders insist that distinction is key to success. Lazaro Hernandez, designer and co-founder of Proenza Schouler, once testified that “design piracy can wipe out young careers in a single season.”

Some designers claim that fast fashion manufacturers and retailers, which rapidly produce cheap knockoffs of original designs, are the primary culprits of design piracy. In the era of social media and ecommerce, experts argue that finding and copying designs is faster, easier, and more profitable than ever before.

Design piracy critics blame the current intellectual property (IP) framework, claiming that statutory loopholes enable copying and make infringement claims complicated and costly.

U.S. IP regulation aims to protect the work of creators while encouraging continued creativity and innovation. Some scholars insist that design piracy demonstrates a failure to achieve either goal in the fashion industry, as copying hinders the growth of innovative designers. Other scholars disagree and support the prominent Piracy Paradox, which posits that copying feeds the rapid turnover of fashion trends, triggering a cycle that keeps consumers buying and designers creating.

Scholars argue that copyright law and patent law contain the most viable IP protections for fashion designs. Although patent protection is more comprehensive, it involves a lengthy and expensive application process that is often inaccessible to small designers lacking adequate resources.

Critics contend that many designers are left with only partial protection under copyright law, as the Copyright Act does not extend full protection to clothing and accessory designs. Instead, it protects  “pictorial, graphic, or sculptural” design features only if they can be identified separately from, and exist independently of, the design as a whole. This separability analysis, scholars explain, protects only certain design aspects, such as patterns, prints, and combinations of colors.

Advocates have pushed for legislation providing comprehensive protection for fashion designs, such as the Innovative Design Protection Act and the Design Piracy Prohibition Act, but none have gained congressional approval.

Is the traditional intellectual property framework leaving fashion designers without protection and enabling design theft in the name of innovation?

In this week’s Saturday Seminar, we feature the work of scholars who discuss intellectual property piracy in the fashion world and pose potential regulatory solutions.

• In an article published in the AIPLA Quarterly Journal, Loren Mulraine of Belmont University College of Law discusses the current state of international IP law in the fashion context. Mulraine compares. fashion design protection to that of China, Australia, and African and Latin American countries. Mulraine observes that copyright law appears to be the primary form of protection for fashion designs in the United States, and yet many design elements fall outside the scope of protection. He blames reliance on copyright law’s separability analysis and a congressional refusal to expand fashion design protection despite significant lobbying efforts. Mulraine contrasts the U.S. approach with design protection efforts in Nigeria and South Africa, which are moving to modernize and expand intellectual property protections in order to capitalize upon their growing fashion industries. To strengthen the global fashion economy and continue the international development of fashion IP, Mulraine suggests that citizens encourage legislators to augment national IP law protections and engage in cross-border cooperation.
• The evolution of the internet and the advent of social media over the last decade have made the work of emerging designers both more accessible to consumers and more vulnerable to piracy, contends Lucrezia Palandri of the University of Florence in an article published in New Frontiers of Fashion Law. She explains that fast fashion giants like Zara and H&M can now draw design inspiration from the social media accounts of small-scale designers and reproduce those trends quickly, often before designers themselves can produce their collections. But designers also increasingly use their social media accounts to call out plagiarism, Palandri observes, capitalizing upon the outcry of consumers to reach favorable outcomes—like compensation—with large companies who have pirated. She argues that informal dispute resolution through social media may be more effective than formal IP litigation at balancing the power between established and emerging brands in the digital fashion space.
• In an article published in Technology & Society Faculty Publications, Clovia Hamilton of Stony Brook University discusses the ways in which fashion industries in developed countries appropriate cultural artisan crafts from under-developed countries. Hamilton explains that fashion designers and product industries collaborate with artisans in impoverished communities, but sometimes these industries appropriate the artisans’ creations and cultural intellectual property without royalty compensation. Companies often disguise these instances of IP piracy, Hamilton argues, as engaging corporate social responsibility through “empowering the poor by encouraging entrepreneurship.” Hamilton proposes best practices in response to such piracy, which include providing artisans with steady income or forming non-profit organizations that donate all revenues from fashion sales back to artisans in need.
• In a recent article in Fashion Theory, Alice Jannsens and Mariangela Lavanga of Erasmus University Rotterdam argue that the statutes and legal remedies that exist to protect and support small, United Kingdom-based fashion businesses fail to address design piracy, discouraging designers and future innovation in the fashion space. Emerging designers, they explain, often refrain from exercising their intellectual property rights because registering their designs is expensive and does not yield significant performance benefits. Furthermore, the authors note, large companies dominant in national and international fashion markets can afford to battle lawsuits by infringers, whereas independent designers cannot. Consequently, Jannsens and Levanga find, young fashion designers struggle to balance their concerns over piracy with the necessity of promoting their wares online.
• In a note published in the Drexel Law Review, Denisse F. García critiques a lack of fashion design protection within U.S. IP law and pushes for legislative change in the internet age. Garcia suggests that the internet serves as a “double-edged sword” for the fashion industry: It provides designers with a platform to advertise and sell to a larger digital audience, but it simultaneously gives design pirates the opportunity to access, copy, and profit from original work faster than ever before. Garcia contends that targeted design legislation, adopted by many European countries, would provide ideal protection and ensure continued innovation and economic growth within the U.S. fashion industry. Given congressional opposition to such legislation, however, she insists that regulators create IP dispute resolution processes to allow designers an organized means to combat infringement without wasting their own resources.
• In an article published in the Cardozo Arts & Entertainment Law Journal, Aman Gebru of the University of Houston Law Center explores the piracy paradox in indigenous fashion. The piracy paradox, or the theory that copying designs can encourage creativity in the fashion industry, would not apply when indigenous designers do not wish to commercialize their fashion, Gebru contends. Gebru explains that the piracy paradox can apply when indigenous designers are open to commercialization, however, because it could encourage designers who want their cultural representations to reach a broader audience to create new designs to compete with mainstream fashion. For indigenous fashion to thrive in a global market, Gebru argues, mainstream fashion must be conscious of cultural appropriation, and companies should implement corporate social responsibility initiatives.