Lilian Klatskin
The billion-dollar fast fashion industry, which churns out on-trend items at low price points, takes ample creative influence from established designers in order to keep up with ever-changing tastes.[1] Indeed, it has “democratized luxury trends for everyday shoppers (who now have the option to dress like their favorite influencers.)”[2] As a result, the industry is often criticized on intellectual property grounds.[3]
However, subject to limited exceptions, intellectual property protection in the United States doesn’t extend to articles of clothing, which are considered “useful articles” and are therefore beyond the reach of the Copyright Act. [4] For this reason, the fashion industry in the United States is substantially unprotected; there is almost no type of intellectual property other than trademarks in operation, and trademark law only protects a designer’s name or logo.[5] Yet the industry is increasingly “held accountable” by other non-statutory forces – namely, the internet and social media – even in the absence of a legally cognizable wrong.
Take the self-proclaimed “fashion watchdog” Instagram account Diet Prada, which has seized upon these perceived infringements both by fast fashion companies and by smaller designers and become a judge in the court of public opinion.[6] Shrouded in pseudo-intellectualism, the account has millions of followers convinced they’re catching a bandit who is flouting IP laws. Often, however, there is little legal merit to the clickbait “scandal” that a Diet Prada post alleges. Instead, the account purports to “call people out” for perceived wrongs, cloaking the allegation in the language of the scruples of the legal system. But with dialogue the length of an Instagram caption, and no further content on their website, any nuance or discussion of what the applicable rules are is left off the table.[7] Moreover, besides a flagrant disregard for understanding governing principles in the industry they cover, the account does not appear to follow journalistic principles of ethics such as reaching out to subjects for comment.
Though it may just be a click bait gossip column, Diet Prada has real commercial impact. Brands “called out” for copying by Diet Prada will see a real loss of business due to the negative press of having broken the rules, regardless of whether there is any merit to the claims. But as one designer who has been criticized on the platform told me, “the court of public opinion is really what matters most on social media.” Beyond being ethically questionable, might it also be socially irresponsible for a platform with such high engagement to push a misleading narrative about fashion protection?
It’s worth considering three policy implications of the hardline approach to fashion design protection that an account like Diet Prada seems to push. First, a policy like this would reinforce a hierarchy of culture, if low-cost fashion could not emulate established designers. Copyright law, however, has moved well beyond a time when it distinguished between high and low art; today it is well established that judges should not make decisions as to the artistic value of a work.[8] Next, assuming that fashion trends start from the top of the industry, this strict view would mean that only those who can afford to wear high-end fashion would be able to partake in trends. In effect, it would decimate the democratic nature of the 21st-century fashion industry, because it would eliminate the idea of the “look for less.”[9] Finally, if designers were not able to emulate each other, it would weaken the growth of the fashion industry overall, because the pursuit of trendiness is what keeps people buying clothes at the rapid rate that they do today.[10]
[1]The fast fashion industry was valued at $36 billion worldwide in 2019. https://www.statista.com/statistics/1008241/fast-fashion-market-value-forecast-worldwide/.
[2]https://www.vox.com/the-goods/2020/2/3/21080364/fast-fashion-h-and-m-zara.
[3]See, e.g. https://www.drapersonline.com/companies/the-imitation-game-fashions-intellectual-property-crisis.
[4]A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally part of a useful article is considered a useful article. 17 U.S.C. §101.
[5]https://www.thefashionlaw.com/how-do-fast-fashion-retailers-get-away-copying-high-fashion-brands/. Though after the Supreme Court’s 2017 decision in Star Athletica v. Varsity Brands, fashion brands in the United States may be able to claim a bit more via copyright law, but this has yet to be shown. See: https://www.thefashionlaw.com/supreme-court-says-cheerleader-uniform-is-protectable-by-copyright-law/.
[6]https://www.instagram.com/diet_prada/?hl=en.
[8]Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903).
[9]See, e.g.: https://www.thebudgetbabe.com/categories/10-The-Look-for-Less; https://www.instyle.com/tag/look-less; https://stealherstyle.net; https://www.whowhatwear.com/celebrity-outfits/slide5.
[10]https://www.vox.com/the-goods/2020/2/3/21080364/fast-fashion-h-and-m-zara; https://www.mckinsey.com/industries/retail/our-insights/the-state-of-fashion.