Photo © 2012 Judy Wu
I love fast fashion and I'm sure most of you do too! How many people can say they have never made a purchase from a fast fashion retailer - H&M, Zara, Forever 21, Mango, and the list goes on. We buy from them because they are cheap and stylish. It allows us to keep up with the latest and ever-changing trends without breaking the piggy bank. I wouldn't be able to count how many times I've bought an article of clothing because it reminded me of something I saw in Vogue, Harper's Bazaar, Elle, in the windows of Saks or Bergdorf, on Style.com or Net-a-porter.com, etc, etc. but would I ever dream about buying the original? Not really, unless it was discounted 98%, which is close to what these fast fashion companies do for us.
However, there's also been a lot of controversy, backlash and debate surrounding "fast fashion" and their methods of production - specifically, from a design aspect. It goes without saying, fast fashion is so popular because it resembles the brands they were "inspired" from and makes us feel almost as beautiful, fabulous, edgy, or [insert your own word here] as the original when we wear it, but at a fraction of the cost! No wonder it's a multi-billion dollar industry!
Unfortunately for these labels that came up with the design initially, they are not protected under intellectual property laws. This is because fashion designs that are useful or functional in nature cannot obtain copyright protection. A classic example is the case of Jovani Fashion v. Cinderella Divine Inc., 10 Civ. 7085, 2011 WL 2671584 (S.D.N.Y. 2011), where the plaintiff had copyright registration of dress designs but the court held that dress designs were "merely useful" and "are not typically copyrightable." Under patent law, a designer may obtain a patent for an "article that is ornamental, a product of aesthetic skill, and artistic conception" Warbern Packaging Industries, Inc. v. Cut Rate Plastic Hangers Inc., 652 F.2d 987 (2d Cir. 1981). This however, still excludes an article in which functional features dominate.
On one hand, I understand that the law cannot be overly broad and protect a functional article of clothing but on the other hand, when some of these items look almost identical to the original down to the color of the button, isn't that the same as plagiarizing a book? I do commiserate with designers whose designs are copied especially the lesser-known designers who are starting out and still trying to make a name for themselves and then a H&M or Zara comes along and puts out a similar look for much less. These are the people that get less publicity and don't have the resources to spend years and hundreds of thousands of dollars to litigate a claim that the law doesn't provide protection for anyways.
The story definitely doesn't end here and I'm sure we will be seeing a lot more on this in the future as the fashion industry continues to fight for the protection it deserves. Lastly, I should note the obvious, that design copying occurs at all levels, whether it is a fast fashion retailer, a luxury brand, a start-up, etc. I don't at all mean to single out fast fashion but their business model is built around getting the latest styles out in the shortest amount of time, which makes them an easy target. My favorite news source, the New York Times recently published an very interesting and insightful article on Zara titled, "How Zara Grew Into the World’s Largest Fashion Retailer." Enjoy!
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Copyright © 2012 Judy Wu
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Great article!
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