Coco Chanel famously said, “copying is the ransom for success.

” One wonders
how the deceased couture designer would react to seeing the ubiquitous replicas
of her iconic Diorama bag — still sold at a whopping $2000 a piece — hung on
the racks of every story from Forever21 to Indian brands like LuLu and Sky to
name just one.

The fashion industry has to an extent benefited from copying. At one time, it was
expected that Zara or HM would soon be carrying whatever was showing at the
lastest Paris runway shows. In recent times, however, even established designers
are claiming creations that they are not their own. Take for example the recent
spat between India’s self-appointed fashion watchdog on Instagram @dietsabya
and designer Nikhil Thampi when the Insta-account handlers accused the
couturier of plagiarizing a Autumn/Winter 2018 dress from Brandon Maxwell’s
runway line that was made famous when supermodel Gigi Hadid wore it to the
launch of her collaboration with jewelry designer Messika.

Thampi was quick to reply on Instagram, but chose take a shot at the messenger
rather than defend his dress. “One must be original to point fakes out,” he wrote
referring to @dietsabya taking inspiration from the New York based fashion
watchdog @dietprada.

Maxwell is one of the hottest designers whose clothes are regularly spotted on
the crème de la crème of the celebrities. It might be that Thampi took inspiration
from the original design. But where does one draw the line between inspiration
and imitation?

Similarly, Manish Malhotra showed a white caped bridal gown in his Pune 2018
show. The grown was a splitting image of the one released by Zuhair Murad in
Vogue as early as October 2017. Was it also inspiration?

Often bigger designers complain that knock-offs of their products are being sold
in markets like Chandi Chowk, which is true. “It is very disheartening,” Rohit Bal
told a leading newspaper in 2015. And again he insisted, “Plagiarism is harmful
for the fashion industry.” Yet, the most recent collection of his more affordable
brand Biba appears to be taking more than just inspiration from designer Rahul
Misra’s runaway shows.

“There's just an open way in which people are unabashedly copying each other,”
says Sukanya Rangaraj Seth who heads luxury projects for Condé Nast. The
question arises: why is this allowed? Why hasn’t the FDCI placed more emphasis
on plagiarism? Are there laws to protect designers from losing both brand
reputation and customer loyalty?

What is the Law?

The law surrounding fashion is actually quite strict. Fashion products are not
covered under copyright because they are utilitarian — they’re meant to be
worn. While sketches made by designers are considered their copyright,
intellectual property rights extinguish once the item has been produced more
than 50 times. Fashion is protected under the Design Act 2000, that allows for
garments to be registered if the applicant can show novelty of design.

“You can get a design registration for the dress as a whole -- for the article and
not the underlying drawing. A lot of times designers don't get registration for
each of their pieces -- that's always a challenge. So, consequently what used to be
happen traditionally designers would rely on the underlying drawing…. but now
if that product is made over 50 times,” says Intellectual Property Expert and
Principal at Fidus Law Chambers Shwetasree Majumder.

In 2008, Majumder was the lead advocate for coutier Tarun Tahliani’s case for
pattern infringement against designer Renu Tandon. That was a case where
Tandon was selling in Pakistan Kaftan printed with Talhiani original patterns.
The Double Bench of the Delhi High Court upheld the case.

“My advice for designers is always you don't have to get registration for every
single garment, but if you have a unique silhouette, if you have a pattern... I
mean it's all very well to say I'm in a creative industry I don't think of these
things, but designers are also businesspeople. They're in business like everyone,
so one has to be sensible about it and get your registrations,” says Majumder.

It has become a trend for big brand designers such as Anju Modi or Tahliani to
get design registrations, but people in the industry say that that kind of
protection can’t be afforded by lesser known designers or even desingers who
are “a few rungs below someone like Tahliani,” says Deepthi Sasidharan, Director
of EKA Archiving, a resource for cultural research. EKA helped up set the Anokhi
museum and is currently helping Wendell Rodricks archive his collections.

“The laws don't really work in the business like fashion -- if even if you've
registered your design, once the copy is made there's no taking it back. You can
only call out and sue. And to do that, you need to be very well established
designers,” she explains.

According to Sasidharan, the protection of fashion lies in archiving the work for
future reference. She hopes to see institutions and museums dedicated to the
fashion created by Independent India in the next 15-20 years.

On the question of bigger brands copying younger designers or lesser known

ones, as what happened most recently between People Tree’s print depicting
India and a Dior dress that had a glaringly similar printed dress, Sasidharan
believes the only calling out and social media can really help the wronged. The
similarly was pointed out on @diet_prada on January 23 captioned “another day,
another luxury company bypassing an opportunity to work with actual artisans.”
Neither People Tree India nor Dior released a statement on this matter.

“Typically with bigger brands, the smaller brand is at a loss -- they don't have the
money to hire lawyers or put out newspaper ads or something to claim
ownership. It happens very frequently,” says Sasidharan.
It happened in summer 2017 when IKA designer Ragini Ahuja’s signature leather
applique worked garments from her Spring/Summer 2017 showing popped up
in French design house Antik Batik’s collection Spring/Summer 2018 collection.
Despite getting in touch with the label, Ahuja got no relief. So she took an
alternate route and got some relief.

“We started a social media movement which forced them to pull off the styles
from their e-shop and social media but theyre shamelessly selling from the
stores. They’re (Antik Batik) making profits from one of our designs and
maligning our image,” says Ahuja.

Majumder agrees. “Copying isn't just about loss. It's about dilution of the brand,”
she says. Explaining further, she adds, “Like today, many people might avoid
Michael Kors or Guess because we don't know if it's a copy or not and thus has
become diluted as brands. That in itself could cost loss from their intended
customers.”

For Ahuja, the copying was more than personal. “We haven’t reached a
settlement yet. More than any monetary gain we intend to make Gabriella
realise that young Indian labels are global. We are no longer a part of a third
world country with no access to technology or means to travel.” She tells Scroll.

SOCIAL MEDIA’S ROLE

Social media has played a big role in spreading awareness about copycat fashion
and designers plagiarizing each other. “With so much of access from social media
and the Internet, digitation of fashion and brands has brought of immediate
access and what happens with that - the minute something is even inspired or
copied from somewhere else, it's out in the open. So I think designers need to be
more careful about how they take inspiration and we (the audience) have access
to everything and are not so easily fooled,” says Seth.

With more access and more transparency, consumers, too, have changed.
“People want originality now. No one wants to get caught on camera wearing a
knock-off,” Seth adds.

The popularity of self-appointed fashion watch dogs such as @diet_prada and

@dietsabya are testament to this abovementioned need. Both accounts grew
over 10k followers within months of creating their handle. The original watch
dog now has a successful merch business that calls out Kim Kardashian for
copying French brand Vetements and Comme de Garson. Their most popular
product is a tee-shirt called Kim de Garson.

ALTERNATIVES

According to Seth, designers need to be their own watch dogs. “The moral code
of designers also needs to pick up. They need somebody on the team to watch for
copycatting. I mean, if somebody on the team, say a junior designer took
inspiration from an international brand, there needs to be a quality check person
saying 'hey, no this is too similar. It's not OK.' There needs to be quality control
in that level. A change has to come from within to keep our fashion business
standards.”

Other alternatives include archiving and more research into Indian fashion post
independence. “We need a research database where academics, interested
parties, students can plug in and see the history of our fashion and what is being
made at present. It should be made accessible to every one who is interested.
Because then it (copying) will never happen because if you have a database
being used by so many people, one won't dare appropriate something that
belongs to something, and which so many people have seen,” says Sasidharan.

Whether any of these alternatives will work, or brands shall become more
conscious of the laws is yet to be seen. One thing is for certain, as @dietsabya
says, “Because people are running wild copying each other.”

Put simply, copyright law is not necessarily a friend to fashion in the United
States. This is a blanket statement, of course, but it bears quite a bit of truth,
nonetheless. Since copyright law - the type of intellectual property law that
protects "original works of authorship,” such as books, paintings, sculptures, and
songs - does not protect useful things, like clothing and accessories, it has
provided a rather small amount of protection for those things in their entirety to
date.

Creative elements of a design that can be separated from the functional elements
are subject to protection, which is why elements of a garment, such as a print
that covers it, may be protected (as Pictorial, Graphic or Sculptural Works). This
protection-by-separation method, however, does little to ward off copiers.

Do remember, however, that in light of the Supreme Court's ruling in Star

Athletica v. Varsity Brands, fashion brands may be able to claim a bit more under
the umbrella of copyright law. (More about that case and its implications here).

Moreover, unlike in most cases of the copying of garments, the copying of

original jewelry designs often tends to give rise to legal ramifications as jewelry
is afforded greater copyright protection in its entirety than garments are.
However, as evidenced by Nasty Gal’s continuous sale of infringing jewelry
designs, for instance, this also does little to deter copycats.

Other forms of intellectual property protection (think: trademark and patent

protection) arguably are not ideal for fashion designs either. Trademark law only
protects a designer’s name or logo – with some exceptions under the doctrine of
trade dress, which are relatively rare.

Patent protection – namely, by way of design patents – is not terribly useful for
designers - practically - because it is expensive (patent protection costs
thousands of dollars to achieve) and takes a relatively long time (upwards of one
year) to obtain. That is simply too long for most fashion brands, whose business
models depend on trends and season-specific wares.

Taken together, this is why fast fashion retailers make hundreds of millions of
dollars by copying high fashion designs and only are very rarely sued – let alone
penalized – for doing so. This is also how high fashion brands can get away with
copying – or taking inspiration from (those are, of course, not the same thing) –
from others’ pre-existing works.

Imitation versus Inspiration

It is worth noting that fashion is a practice that relies heavily on inspiration. In
fact, the entire fashion industry is based on the ebb and flow of inspiration and
facilitation of trends. It is important to call attention to the distinction between
imitation and inspiration. Imitation refers to the production of identical copies
and/or the substantial copying other artistic works.

This is the type of replication that would likely run afoul of intellectual property
laws, if we considered it in a legal context. Speaking outside of the legal realm,
imitation is the blatant replication of the cut, construction, print, pattern, and/or
other features of another garment or accessory.

Imitation is different, of course, from inspiration, as the latter entails taking

existing elements and interpreting them in a new or original way. Inspiration is
extremely common place in fashion, largely because so much has already been
done.

With that in mind, many times designers or the many social media
accounts/websites dedicated to “spotting copies” will post side-by-side images
and call ‘IMITATION!’, when the word they are actually looking for is …
inspiration.

The promotion of inspiration - even by fast fashion retailers - may seem like a
strange argument coming from a website that is largely protectionist in nature,
one that believes that designers and garments deserve the same level of
protection as photographers and photos.

However, there is a very fine line between imitation and inspiration, and it is an
important one – one that cannot be confused or widely misused – because
fashion so thoroughly depends on the ability to draw inspiration from existing
sources … because the silhouette of the pencil skirt already exists and the
button-up white shirt has already been done. If we were to start calling ‘COPY!’
every time an existing element was used, we would be clothing-less within a
season or two.

Outside of the U.S.

While a lack of perfectly formulated fashion protections is the norm in the U.S.,
this is not the case in other countries – namely, in the countries of the U.S.’s
international fashion competitors. Copyright protection in the UK is not terribly
dissimilar from that in the United States. However, the European Designs
Directive introduced a unified system of industrial design rights for both
registered and unregistered designs throughout the European Union. This allows
for the protection of garments and accessories in their entirety.

Due to its history as the home of innovation in terms of high fashion, it is not
surprising that France enjoys the most extensive and longstanding legal rights in
connection with fashion designs. The country’s copyright system provides
protection for garments and accessories. The same type of protection also
applies to Italian designs.

So, it is within these loopholes that retailers like Zara, Forever 21, H&M, and the
like – as well as bigger names in the world of high fashion – can operate legally
(for the most part) and profit from the designs of others.

Copying is as old as the fashion industry itself. As early as 1903, Charles

Frederick Worth began sewing labels bearing his signature into his clothes as a
means of authenticating his designs. Coco Chanel considered knockoffs so
inevitable that she described them as “the ransom of success.” (This position
didn’t prevent her from allying with her rival, Madame Vionnet, in 1930 to sue
Suzanne Laneil, a copyist caught with 48 sketches of their designs.)

Today, knockoffs are more rife than ever before. Fast fashion companies like
Zara and H&M have built multi-billion-dollar businesses reproducing the latest
catwalk creations for a fraction of their original price. And copying exists among
luxury brands too — in the past few years, companies including Saint Laurent
have faced lawsuits from other fashion houses.

Is this copycat economy damaging designers? Or does it keep the wheels of the
industry turning?

The Cost of Copycats

“Brand loyalty is down…and the taboo of mixing high fashion and high street is
largely gone,” says Julie Zerbo, editor-in-chief of The Fashion Law, a blog that
covers legal and business news in the fashion industry. In today’s market, she
says, “Customers will be tempted towards the lower-cost items, especially if it is
a trendy piece that they just want to wear for a season or two.”

The fact that near-identical copies of luxury fashion designs are available on the
high street dilutes luxury labels’ brand equity and makes their products less
desirable, says Elaine Maguire O’Connor, a fashion law lecturer. “If the luxury
customer has seen that design in Primark or H&M, then they’re less likely to pay
all that money.”

Jewellery designer Pamela Love agrees. In 2012, Chanel withdrew a series of

geode crystal cuffs after public outcry over how closely they resembled Love’s
bracelets. “Being copied by fast fashion designers really waters everything down.
It makes our ideas less special, which ultimately hurts our business and our
authenticity,” she says.

The exact cost of being copied — for example, loss of sales due to knockoffs — is
“notoriously difficult to quantify”, says Susan Scafidi, founder and director of the
Fashion Law Institute at Fordham Law School. However, she is convinced, “It
really impacts the bottom line.” Certainly, the difference in sales between
original designers and their imitators can be dramatic. When Narciso Rodriguez
designed Carolyn Bessette Kennedy’s wedding gown in 1996, he sold 45 more of
the same dress. By comparison, one copyist sold 80,000.

For emerging designers, copycats can be even more costly. Not only do young
designers lack the reputation and loyal customer base that drive sales at large
brands, but, “often customers don’t even know that they’re buying copies,
because they have never seen the emerging designers whose work has been
stolen,” says Scafidi.

Young designers also tend to rely on a few staple products for sales, which makes
knockoffs even more damaging. “As a young designer, you become well known
for a silhouette,” says Edgardo Osorio, founder of shoe brand Aquazzura. These
classic styles, which can be carried through several seasons, “are the way the
designer makes money, because they don’t go on sale. When they start copying
my classic styles, it’s a problem.”

Emerging brands also have a limited ability to fight back. Design patents, which
protect the ornamental design of a functional item, are by far the most effective
defence against copycats — in the past few years, brands including Céline, Jimmy
Choo and Balenciaga have invested in them. But filing a patent can cost upwards
of several thousand dollars and in the US the average processing time for a
patent is more than 24 months.

Even if emerging designers do have a legal claim, going up in court against a

retail giant is often financially unviable. Jewellery designer Eva Fehren’s best-
selling ‘X’ ring (which has been worn by the likes of Kristen Stewart and Jessica
Alba) has been widely knocked off. Fehren initially enjoyed some success taking
a legal route against several copyists, but has since dropped this strategy. “To be
spending such a big portion of our budget on legal fees when we should have
been growing our brand was very difficult,” she says.

Introducing Regulations

Some believe that existing laws are failing the fashion industry and should be
improved.

In most countries (including the US and the UK) fashion doesn’t enjoy the same
protection afforded to creative media like art, literature or film, because clothes,
shoes and bags are categorised as “functional items,” which are exempt from
copyright laws. Instead, copyright law only covers the separable creative
elements of a product, such as a print pattern.

Other intellectual property protections do cover fashion, but few are effective.
Trademark law protects items where a commercial logo is visibly displayed —
while this makes it a vital anti-copying tool for logo-ed products such as
handbags, it’s less useful for ready-to-wear. The same is true of trade dress,
which covers products with a design that is so identifiable, it has become a kind
of trademark. “The Birkin bag is protected by this. It’s so iconic, when people see
[it], they automatically know that it comes from Hermès,” says Zerbo, but adds,
“It’s hard for an individual piece of clothing to achieve a level of distinctiveness
that someone will see it and be like, ‘Oh, that dress is Altuzarra.’”

Some countries have introduced additional legislation to better protect the

fashion industry. In the EU, design protection is supplemented by the Creative
Designs Directive and the European Designs Directive, which protect new
designs for three or five years,

However, a lack of harmonisation between the laws in different countries makes

it difficult for brands to protect their designs across markets. In the US, which
has no supplementary regulations, protection for fashion is “terrible,” says
Maguire O’Connor.

The Piracy Paradox

Some opponents of greater regulation argue that copycats benefit fashion.

According to Christopher Sprigman, professor of law at New York University and
co-author of ‘The Knockoff Economy,’ copying is “the engine driving the fashion
industry.” He calls this concept the “Piracy Paradox.”

Unlike in industries like technology, in fashion, there isn’t a constant stream of

product innovation that renders old items obsolete. Fashion consumers buy
clothes out of desire, not necessity: they buy a garment one season, but are
unsatisfied with it by the next, so purchase something new.

When a new design first appears on the catwalk, its high price means that only
elite customers can afford it. These customers are the early adopters and
trendsetters. When the design is copied, it signals to the market that this is going
to be a trend, and even more copies are produced.

These copies find their way into fast-fashion retailers, and mass consumers start
to buy into the trend. But as the design trickles down the market, it lose its allure
for the luxury consumers who kick-started the trend in the first place and who
value luxury fashion for its exclusivity and distinctiveness. These customers start
looking for something new — and the cycle begins again.

Copycats help create trends, and then help destroy them, paving the way for new
ones to take their place, argues Sprigman: “Without copying, the fashion industry
would be smaller, weaker and less powerful.”

A Broken System, a Shifting Balance

The idea that copies keep trend cycles turning was first proposed by the
American economist Paul Nystrom in 1928 in ‘The Economics of Fashion.’
However, nearly 90 years later, technology has evolved, and both the speed of
production and information have increased dramatically. “[Sprigman and co-
author Raustiala’s] argument is just a resurrection of an old argument about the
fashion cycle, but they’re making it at a time when the cycle is broken,” says
Scafidi.

During Coco Chanel’s lifetime, copyists had to sneak into the shows and sketch
new designs from memory, before sending them to far-off factories to be made
into garments. Today, anybody can access images of the latest designs seconds
after they’ve been sent down the runway. And because of high fashion’s seasonal
calendar, in which designers show runway collections months before they go on
sale, fast fashion retailers can often get their imitations into stores long before
the originals hit the shop floor.

Designers have lost their first-to-market advantage and the balance of the old
cycle — where designers and their copycats could co-exist — has shifted, Scafidi
argues. “There’s no time for trendsetters to adopt the item and for people to pay
the designers for the original work,” she says. “The copyists are winning right
now.”

Laws and Locks

“Whenever we deal with theft of intellectual property in the real world, there’s
always a combination of law and locks,” explains Scafidi. “There’s a law against
going into somebody’s house and stealing something, but you lock the door every
night.”

While ideally the law should be “stepping up” to protect designers, says Scafidi,
some designers have made themselves harder targets for copycats by using
technical fabrics and complicated designs, which are difficult to reproduce at a
low price. In recent seasons, British designer Mary Katrantzou has moved away
from the vibrant digital prints that launched her career, after imitations spread
like wildfire across the fast fashion market. Her latest collections featured
custom-made embroidered jacquards and guipure lace: “It’s impossible [for
mass-market chains] to come close to the quality and the craftsmanship,” she
told The Wall Street Journal.

Designers can also use their dialogue with the consumer as a powerful weapon
to protect themselves. “Communicate to the customer that you are the creator
and, therefore, able to reap the commercial benefits of your creation,” advises
Ceci Joannou, founder of Brand + Commercial, a digital resource and fashion
commerce consultancy for small brands. Eva Fehren incorporated the story of
her ‘X ring’ copycats into her marketing. “It’s become part of our plan of attack,”
she says.

In many ways, the Internet has worked to the advantage of fashion pirates — but
it has also provided designers with a platform to fight back.

Many designers have used social media to publically call out knockoffs, with
some success. Chanel recently withdrew a range of Fair Isle-patterned sweaters
after the designer Mati Ventrillon complained in a Facebook post that the luxury
brand had visited to her factory and then plagiarised her designs.

Last week, Aquazzura’s Osario called out the designer Ivanka Trump on
Instagram for producing a $145 imitation his ‘Wild Thing’ fringed suede sandals
(Aquazzura’s retail for $785). “You just have to go public because that’s the only
way that hopefully somebody will pay attention and something will happen,” he
says. “Because going through lawyers doesn’t work.”

Customers — the ones keeping the copycats in business — have a responsibility

too, adds Scafidi. “Consumers need to understand that there is a harm that they
do when they choose the cheap knockoff… [Fashion companies] need to recover
the cost of paying designers to design.”