While doing my daily Instagram scrolling, I came across a story about an independent artist on Instagram as @zoevya who paints gorgeous line art portraits on vintage white boots. Fast-fashion company RomWe was manufacturing boots with an uncanny resemblance to the artist’s original handpainted designs. Instagram was outraged and so was I. My experience with fast fashion’s past shenanigans told me this was likely not an isolated incident - so I did some digging. After reading an article from Vox and one from Huffpost my suspicions were confirmed, and the gravity of the matter was even worse than I anticipated.
Zoé was not alone. Mother and independent designer Carrie Ann Roberts of Mère Soeur had her matching mother and child t-shirt designs stolen by Old Navy, who sold them at a much lower price point than Mère Soeur. This spells trouble for small designers like Roberts whose manufacturing costs aren’t as dirt-cheap as Old Navy. Not only has the big box store stolen her design, they’ve priced her out of her own market.
What can Roberts do to fight back? Sadly, very little. Fashion is regarded by the copyright system as a useful good rather than art. That means the system treats a fashion design more like a toaster oven or reading lamp than a novel or a song.
Options for copyrighting a piece of clothing exist, but they are sparse and hard to come by. You can patent a useful element of a garment, for example, some entrepreneurship students at my university were able to get a patent on baseball hats they designed with a pocket insider to fit your cards and keys. You can also trademark a logo, which is true across the board from cereal to clothing brands.
What you can’t protect is the design itself. You could design a dress, and someone could copy the exact color, cut, fit, texture, drape – basically every design element could be exactly the same- and you would have no legal claim.
Even if a small designer does think they have some legal grounding taking it to court can be expensive. A legal battle could cost an independent designer their entire savings account while the company they are suing has plenty of money to throw around to hire a strong defense. It’s simply not an even playing field.
The best bet an independent artist has at winning the war for their designs is in the court of public opinion. Social media is a powerful tool for creating outrage. When Roberts created a frenzy on Instagram over her stolen designs, Old Navy pulled the product from its website and ceased production of new batches- a partial win.
Others have been less lucky. Artist Tuesday Bassen’s enamel pins were blatantly ripped off by Zara. Bassen’s fans came to her defense and shamed Zara online. But Zara didn’t seem to care. Here is an excerpt of their response to a complaint from Bassen’s lawyer addressing the social media backlash:
“In this last regard, please note that such notifications amount to only a handful of complaints only; when it is borne in wide that millions of users visit the respective websites monthly”
Essentially, Zara is saying “We are big and untouchable, and you are too small to hurt us”
Bassen’s failure aside, social media exposure is the number one tool small designers have at finding justice. Copyright law is messy and could take decades to change. Until then designers must sit with the fact that their creative work is vulnerable to theft at any moment.
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