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. 

What Rights Do Independent Designers Actually Have?

Following Star Athletica, the framework for protecting clothing designs under copyright law is more settled — but not simple. The separability test the Supreme Court articulated means that decorative elements of clothing (surface patterns, graphic prints, embroidered designs, and ornamental features) can be protected when they can be perceived independently from the garment’s utilitarian function. The cut and shape of a garment itself remains generally unprotectable as a “useful article,” but the artistic elements applied to it may well be.

For an independent designer to enforce copyright against a fast fashion brand, the following must be demonstrated:

• Originality: The design must be an original work of authorship under 17 U.S.C. § 101. Standard geometric patterns and purely utilitarian elements do not qualify, but distinctive artistic elements created by the designer do.
• Registration: Copyright protection arises automatically at creation, but registration with the U.S. Copyright Office is required before filing an infringement lawsuit under Fourth Estate Public Benefit Corp. v. Wall-Street.com, 586 U.S. 296 (2019). Prompt registration within three months of publication unlocks statutory damages up to $150,000 per willful infringement.
• Substantial similarity: The allegedly infringing garment must be substantially similar to the protectable elements of the original design. This analysis focuses on whether an ordinary observer would perceive the designs as virtually identical, abstracting away unprotectable elements.

Trade Dress and Trademark Protections for Fashion Brands

Beyond copyright, designers may have additional legal tools against fast fashion copying. Trade dress protection under 15 U.S.C. § 1125(a) of the Lanham Act covers the overall commercial image or look of a product when that appearance is non-functional and has acquired distinctiveness. Fashion brands that have developed distinctive, recognizable product lines have successfully asserted trade dress claims even when copyright claims were unavailable or uncertain.

Luxury brands have used trade dress claims to protect distinctive design elements of their goods — including bags, shoes, and accessories — against fast fashion knockoffs. While the fashion industry lacks dedicated design protection legislation like that provided in some European countries, the combination of copyright (for artistic elements), trademark (for brand identifiers), and trade dress (for overall product appearance) can provide meaningful overlapping protections.

Practical Enforcement Against Fast Fashion Brands

Enforcement against large fast fashion brands that produce and sell at extraordinary volume is expensive and difficult for individual designers. However, class action litigation has been filed against brands like SHEIN by groups of designers alleging systematic design theft. Individual cease-and-desist campaigns backed by clearly registered copyrights have resulted in settlements. Social media attention to design copying has created reputational consequences that motivate brands to respond even absent formal litigation.

The practical enforcement steps for an independent designer whose work has been copied include:

• Registering the design with the U.S. Copyright Office immediately if not already done
• Documenting creation date and the timeline of the design’s development
• Sending a DMCA takedown notice to any platform hosting the infringing product listing
• Engaging a copyright attorney to send a formal cease-and-desist demand letter
• Evaluating litigation or demand-letter settlement based on the economic value of the registration and provable damages

If your designs have been stolen by a fast fashion brand or any other party, contact Revision Legal at 231-714-0100 or 855-473-8474. Our copyright attorneys will assess your protectable rights and the best path forward.