When ‘Get the Look for Less’ Turns into Copyright Infringement
Fast fashion is so hot right now. Hundreds of fashion brands have flooded the market in the last decade selling cheap, wear-it-once clothing. This business model is especially prevalent in the ecommerce space. The attraction of this model is obvious: consumers can buy more clothing, more often, and express themselves through their clothing in more ways than ever before.
But the production of more and more clothing requires more and more designs for clothing, and it should come as no surprise that fast fashion brands, to constantly and quickly churn their offerings all while keep costs down to maintain their scant margins, have often resorted to “borrowing” designs from other sources. There’s another word for that: copyright infringement.
A prime example. The popular fast fashion brand SHEIN has long been accused of taking designs from other sources, usually independent designers who post their work on social media, and creating their own version of that clothing to sell for a pittance. If true, it would subject SHEIN to copyright infringement liability in many cases. The hard, artistic work of creating the design done by the independent designer is undercut by the large, fast fashion brand who can produce, distribute, and sell the clothing for a cost much lower than the independent artist could ever hope to. Such is the market inefficiency that copyright law is meant to protect. However, because ‘useful articles’ are generally not copyrightable, there has always been a debate whether clothing is copyrightable and, if so, to what extent.
In Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 424 (2017), the Supreme Court clarified the copyrightable of clothing designs. The Court held that “an artistic feature of the design of a useful article [like clothing] is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article” and that “[b]ecause the designs on the surface of . . . cheerleading uniforms . . . satisfy these requirements,” those designs are copyrightable. Id.
While not every aspect of clothing is copyrightable (for instance, any useful part of the clothing like certain aspects of its shape and cut) are not copyrightable, the high Court’s decision in Star Athletica made clear that the graphic designs found on clothing are protected by copyright laws.
How does this impact fast fashion? It means that fast fashion brands who take designs from other designers—or develop substantially similar designs—and use them on their own clothing are committing copyright infringement. And because copyrights arise upon creation of a creative work in the United States, those designers from whom the fast fashion brands take their designs would have viable claims for copyright infringement.
Independent designers can take steps to better protect themselves against having their designs stolen. Most importantly, designers should register their works with the US Copyright office within 3 months of creation to solidify their rights.
Revision Legal is a full-service intellectual Property law firm and can help designers protect their designs and their brands from infringement. If you would like a free consultation call, please call us at 231-714-0100, or drop us a line here.