In a postmodernist era the boundaries of originality and authenticity are progressively blurred. The fashion world, known for its affection for pastiche and appropriation is an industry laced with accusations of piracy and plagiarism. Independent designers, often seen as the crusaders of creative ingenuity are fast becoming victims of the piracy wars. Kate Hart – trend forecaster and all-round vector of equality and fairness – argues that attitudes towards plagiarism within the industry need to change and calls for greater transparency among key players to create a best-practice model to ensure a future for sustainable forward fashion.
As a species we have both survived and thrived on our abilities to copy. Copying, cooperating and collaborating, the sharing of ideas and information has formed the basis of every aspect of our society. Taking a good idea, replicating it, expanding on it and developing it has allowed us to progress exponentially, so much so that without the inspiration and influence derived from others, much of this progression would not have been possible and the products and services that we now take for granted would not function at the levels they do today.
As copying has increased, so too have the laws against it. Trademarks, patents, intellectual property rights and copyright laws serve to protect the ideas and designs of the individual or co-operative to ensure credit and remuneration are distributed correctly. Utilising the ideas of others remains an intrinsic part of both functional and aesthetic design, either as a starting point for improvement or a reworking to solve a new set of problems. Wholesale reproduction, however, appears to offer very little to the design process and encroaches on our innate desire for progress.
In the context of fashion, the ubiquitous question of how one determines the difference between inspiration, influence and outright rip-off, and where the line is to be drawn, remains as emotive as ever.
The Paradox of Fashion Piracy
Leon Bendel Schmulen, of New York’s Henri Bendel department store, once stated that copying was “a natural consequence of fashion” and many of the major fashion houses have so far accepted a certain amount of copying as part and parcel of their ascendancy within the industry, Coco Chanel herself stated that “being copied is the ransom of success”, and in many ways imitation really is the sincerest form of flattery.
A piece that is copied ad infinitum at lower levels can bring the originator the cachet of creating the season’s must-have look, potentially ensuring a designer’s place in fashion history. To some, high-street knock-offs are seen as hugely beneficial, bringing the designer’s name and DNA to a wider audience with the opportunity to inspire consumers to graduate from “knock-off” to“real-deal” purchases.
Despite the publicity surrounding cases such as New Balance v Lagerfeld – in which New Balance sued Karl Lagerfeld for copyright infringement – high-profile lawsuits often make it no further than the pages of the newspapers. The act of filing a lawsuit is sometimes merely a show of strength from the plaintiff to ward off other would-be infringers while gaining some acknowledgement for the original idea.
Photo taken from www.marieclaire.co.uk
Often, because all publicity is deemed good publicity, it appears that very little damage is done to the reputation of the defendant and in many cases, even if the offending item never makes it to the shop floor, the profile of both parties is not only raised but potentially improved simply by being associated with a cooler brand or established name.
As the price of designer clothing continues to rise year on year, it could be seen to support the view that copying is generally good for business. In the past the ignominy of not being copied invariably outweighed any concern that lower-quality reproductions would damage the status of a brand. However, with an increasing number of lawsuits being filed against various retailers, and the damage done to the reputation of some high-profile brands by illegal counterfeiting, designers are now taking greater steps to combat plagiarism.
Riding the wave of technological innovation to deter copyists
Artist: Hokusai “The Great Wave off Kanagawa”
In order to outwit the copyists, designers must consistently come up with fresh ideas and inventive cuts, or utilise the latest innovations in garment technology to make designs more difficult or even impossible to replicate at a lower price point.
Source: Collection by Noa Raviv The 3D portions of the designs were created using Stratasys’ Objet Connex 500 Multi-Material 3D printing technology
Awesome Without Borders project created by Anouk Wipprecht
The recent introduction of click-to-buy at a number of SS15 shows, allowing customers to purchase designer looks as they left the runway, was the next step in fashion’s synergy with technology but also an opportunity to get a jump on the high street. While it could be argued that copying is therefore not the enemy of creativity, it is presumed that only those with significant resources could afford to take this kind of action.
The socio-economic impact on imitation and innovation
In 1933, the problem of copying was taken on by Maurice Rentner, manufacturer and founder of the Fashion Originators Guild set up in 1933 to protect its members from piracy, who took the view that “imitation would lead to the demise of the industry”. While this statement may seem drastic, the potential damage of copying to an industry supposedly at the cutting edge should not be ignored. The growth of the fast fashion market, where items are produced in quick response to the designs walking the runways, is one of the key factors in the rising levels of piracy. This sector is arguably the biggest beneficiary of copying, regurgitating almost identical products with minimal alterations, manufactured at a fraction of the cost within impressively fast turnaround times.
This is a highly lucrative and commercially viable route to take, but as margins and price points hold sway over and above creativity and innovation, this is only the case in the short term.
With an artificially hastened trend cycle, mass-market retailers are not only supplying but also feeding consumer demand for affordable takes on high-end designs. An increasingly homogenised high street is emerging, with repetitive, identikit copies filling the shelves and an over reliance on proven products that do not rock the mass consumption boat. This in turn creates a dearth of products with the ability to engage and excite, leaving little cause for cheer among a talented workforce employed to imitate rather than innovate, but also leaving in doubt the notion of fashion as a truly creative outlet.
Design imitation – encouraging a more risk-averse industry
In broad terms, design should have a soul and the ability to provoke feeling. Good design can not only serve a useful or aesthetic purpose but can also engage minds and challenge thought processes. Experimentation and risk-taking on the part of the designer is how products and, more broadly, societies progress.
Repeatedly reproducing the work of others with little or no development not only detracts from the design value of the original, it encourages an increasingly cautious and risk-averse industry, in turn creating a more cautious and risk-averse consumer.
In terms of trend lifecycle, as a forecaster I am acutely aware of how a certain amount of copying helps to cement a season’s key looks. Kal Raustiala, co-author of The Knock off Economy: How Imitation Sparks Innovation, states that “fashion relies on trends, and trends rely on copying”. However, outright piracy is not necessary in tracing a trend, and an artificially accelerated cycle means there is little room for natural evolution or further directional development. It also makes it harder to get an accurate picture of where the industry is ultimately headed.
A fashion cycle that moves at a hyper-real pace, with trends hitting their peak before being quickly discarded, leads to apathy among consumers, who will tire of struggling constantly to keep up and at the same time will be increasingly unable to find products that accentuate their individuality.
So who is at fault – the high-street retailers or the industry as a whole for its incessant reliance on commerciality over creativity? The ability for copies to generate significant revenue means this issue is not just confined to the mass market. A profitable business model, however short-term, unethical or potentially damaging, will itself be copied throughout the industry as companies seek to be competitive.
Although fast fashion retailers are often portrayed as the villains of the peace, more and more accusations of peer-to-peer plagiarism are surfacing at the designer level. In February, Roberto Cavalli accused American designer Michael Kors of copying his designs, and although he could give no specific examples of what was allegedly copied, he referred to Kors as “one of the biggest copy designers in the world”. In an interview with Oprah Winfrey, Ralph Lauren spoke about how he maintained his longevity and his ability to reinvent. “You copy,” he said. “Forty-five years of copying – that’s why I’m here.”
Collections attached to celebrity names have come under particularly close scrutiny, where accusations of borrowing from other labels have been levelled at The Row and DW Kanye West among others in recent years.
Designers Mary Kate and Ashley Olsen, pictured right, behind designer brand the The Row.
DW by Kanye West SS 2012
While this could be seen as a case of sour grapes on the part of the fashion establishment, any collections based heavily on a celebrity’s personal wardrobe will inevitably contain pieces that bear a striking resemblance to another designer’s work.
The industry’s biggest names are also gaining a reputation for pirating the designs of other less well-known or independent labels. Some are known to be guilty of buying up the entire collections of independents in order to reproduce them under their own name. Diane von Fürstenberg, despite triumphing over Forever 21 in a case of copied dress designs and being a vocal advocate of the Design Piracy Prohibition Act, was on the receiving end of a lawsuit filed by Canadian label Mercy. Von Fürstenberg was able to utilise the subsequent publicity surrounding the case, calling it an “isolated incident” and, as is often the case, came out relatively unscathed while maintaining, correctly if somewhat paradoxically, that “it is unfortunate that way too many others intentionally build businesses by stealing the work of other designers”. Notwithstanding his views on Michael Kors, Cavalli himself is now having to deny allegations of plagiarism and defend a lawsuit filed by a San Francisco based graffiti collective who claim Cavalli not only misappropriated their work but added his signature to the prints, thus implying he was the original artist.
Source: www.vogue.com. Left: wall of graffiti art by San Francisco collective. Right: Roberto Cavalli print bag
Independent designers are most often the victims in the piracy war. Arguably they make up the most innovative sector of the industry, pushing boundaries and taking risks in terms of creativity and ingenuity. And they do not necessarily see the benefits of copying in terms of any publicity generated by complaints or legal action. Manhattan-based label Foley & Corinna have seen their designs plagiarised by a number of fashion chain stores, but any acknowledgement of this has been a double-edged sword. In an interview with the New York Times, Dana Foley described people’s reaction to the label as “Oh, they’re the ones who always get knocked off.” She added: “They are not saying: ‘They are the ones with the most amazing ideas. ’That’s not the sentence.”
There is also a downside for those keen to promote innovative designers and bring their work to a wider audience. Forecasting is not just about following the trend trail but discovering the people and products who are shaping fashion’s future. However, the more independents, fledgling labels and smaller manufacturers see their ideas plagiarised by major brands and retailers, the harder this becomes and the less likely they are to want to engage with such services. At trade fairs and press days it can sometimes be difficult to access information, photos or samples because labels have, to quote, “already had their fingers burnt”. For all concerned it is hugely frustrating that exciting talent and new design cannot make full use of a promotional platform and gain the wider acknowledgement it rightly deserves.
Can designers really protect their work against piracy? How would legislation be enforced and are there consequences in designers having greater power over their own designs?
Trademark protection prevents the unauthorised use of a brand, making the act counterfeiting a logo illegal. Copyright laws can be applied if a cut or silhouette is deemed to“qualify as a creative sculpture” and there is some protection for the shapes and styles of, for example, iconic handbags, but because clothing, like furniture and cars, is classified as a “useful article” with an “intrinsic utilitarian function” it is almost impossible to protect individual designs.
In practice the law offers very little to designers wishing to safeguard their ideas. In America the Senate has been called on a number of times to strengthen legislation against plagiarism in fashion. Since 2007 a number of bills, all entitled the Design Piracy Prohibition Act, have been introduced to Congress in an attempt to offer a three-year term of protection for registered designs. Those proposing such bills have cited Europe’s design rights laws that protect both registered and unregistered designs as the model the US fashion industry should be following. However, although Europe has stronger laws in place, they are rarely used or enforced in piracy cases and Europe itself is also home to some of the biggest high-street fashion copyists. The Design Piracy Prohibition Act has yet to make any significant progress and legislative bodies have so far avoided the plagiarism issue. After a period of recession and with unemployment still high, perhaps it is understandable that there has been reluctance to alter the status quo and put pressure on the retailers to follow ethics rather than figures. However, the most important aspect that must be considered in terms of change to copyright law must be the protection of democracy within the industry.
Unlike other creative disciplines, such as art or literature, everyone, regardless of their level of involvement engages with fashion on a daily basis. Upholding strict copyright laws would impede ordinary people from buying into trends, preventing shoppers at all levels from understanding what they should be wearing in any given season.
High fashion would remain as it has always been, but for everyday shoppers without access to the high-street versions, on-trend items would be obtainable only to the privileged few. Currently most of us are able to walk into a store and pick out a trend-led piece that resembles a designer item we could not otherwise accommodate within our budgets.
The enjoyment of fashion and the ability to engage with fashion trends should be available to all, and a rigorous enforcement of any copyright law that increases a designer’s powers of protection could alienate an entire section of the market but also provide a whole new set of legal challenges.
In terms of the creative industries, designers and artists alike are tuned to the changes in society, intuitively responding to an overriding theme or mood, often focusing their energies in similar ways or coming from very disparate points to arrive at similar conclusions. This can clearly be seen at Fashion Weeks around the globe, when a particular point of reference runs through several collections. Current events, for example, will naturally inspire more than one designer, and coincidences will occur without the need for direct copying. Any changes in the law would therefore have to be carefully drawn up with clear guidelines in order to avoid undeserved claims or counterclaims from individuals who simply had the same idea at the same time.
Source: www.marieclaire.com – Seascape prints on chiffon used by both Valentino and Rodarte SS15 fashion shows
Critics of the Design Piracy Prohibition Act have argued that such bills could work against those it is supposed to help, as independent designers would not necessarily have the resources to fight accusations of copying made by a bigger competitor and thus create a design monopoly encompassing only the largest and most powerful brands.
Where do we go from here?
Copying is an intrinsic part of human nature. We thrive and grow and move forward because of it, but blatant plagiarism is the very antithesis of all our creative endeavours.
Fashion, therefore, should have nothing to fear from being more transparent. To credit the origins of a design and in effect “show your workings” should be viewed as an opportunity to engage with and educate the consumer while showcasing the hard work, research and creative flair of a designer who can look at a piece from the past, update it, improve it and make it relevant to the modern day, or utilise the latest technologies to create something visionary and totally new.
Transparency – a best practice model for the future
How a designer’s mind works, taking disparate influences and transforming them into wearable works of art, should be celebrated. Referencing the work of others is not indicative of piracy but it should be the case that sources of inspiration are made public. At the very least, a code of conduct that required repeatedly stating your source would enable fashion houses and retailers to think about their own processes more clearly.
For the lawmakers, balancing the importance of democracy and the continuation of financial growth against the intellectual property rights of designers is a difficult task, but there is a need to discourage companies from adopting a settling-out-of-court business model. It should not be more cost-effective for a company continually to pay damages to designers they have plagiarised rather than legitimately procuring a licence to reproduce, for example, a textile print or graphic.
Even when designs protected by law are copied and very little in the way of punitive measures are applied, it further tarnishes the reputation of an industry that has often had its moral compass called into question. As long as blatant copying is seen as an accepted, even integral, part of the industry, it will serve only to dishearten and disenfranchise both designer and consumer. As the front of house of fashion, designers at the upper echelons have more room for manoeuvre in terms of effecting change. Those considered to be the leading lights at the pinnacle of their profession certainly have the public presence and financial clout to consign copying to the scrap heap and set an example to the rest of the industry.
Perhaps though, it is the much-maligned high-street retailers who could have the biggest impact and reap the most benefits in leading the way. Through better utilisation of the talent already at their disposal, combined with their manufacturing capabilities and ability to reach the masses, producing their own innovative designs would certainly not be beyond their means. In many ways, the fast fashion retailers have the biggest opportunity to reinvent and shift their position in the market, from imitator to innovator, and in the process gain more respect for what is a large and vital part of the fashion industry. Placing prominence on “own initiative” would consolidate their standing as a forum for design-led, forward-looking fashion.
The huge popularity of collaborations between high street and high end, together with the promotion of capsule collections from new upcoming designers, proves how working together in a legitimate way can be successful for all parties in both financial and design terms. Developing an original product and making it available at mass-market level diminishes the need for copying while satisfying the need for democracy in fashion. If these initiatives were to become a working standard we could see a natural reduction in the levels of piracy.
In the long term, fashion cannot afford to forget its roots in the creative arts or have doubt cast on its position as a vibrant design showcase and a pioneer of the avant-garde. While many designers and companies are making great strides in experimentation and innovation, and already working in a transparent and ethical manner, the onus must be on the most powerful sectors of the industry to reject copying and embrace creating, making the fashion plagiarists the exception rather than the rule.
Title page cover Source: Danish artist collaborative Superflex www.superflex.net