Cut/Copy: The Perfectly Legal World of Fashion Piracy

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In July 2013, the highly anticipated Magna Carta Holy Grail, the twelfth album by Jay-Z, was pre-released via an exclusive Samsung app. The promotion, expected to be a huge boon for Samsung, was hijacked by music pirates. In one day, over 200,000 illegal copies of of MCHG appeared on torrent sites, theoretically robbing the Jay-Z of those 200,000 sales.

This is the music marketplace, where an exact copy of an original song could be made and distributed at no cost. Terrified musicians and record labels have responded by aggressively enforcing its copyrights. Despite legal victories, the prevalence of not-hard-to-find music sharing sites has made the Sisyphean task of prosecuting piracy seem futile. Imagine then were copying is rampant but also legal. Welcome to the world of fashion.

Fast fashion companies like Zara or Forever 21 have built their entire business model on copying runway looks and bringing them to market earlier. For now, there is little recourse for a designer who’s ideas have been stolen and mass produced. But at least one lawyer is trying to change that. Julie Zerbo, Editor-in-chief of the blog “The Fashion Law,” a blog focusing on the business and legal side of the fashion industry, routinely calls out brands whose designs bear a striking resemblance to other more established ones. However, other than the public shame (if any is felt), copying breaks no laws.

“The vast majority of copying that takes place is, in fact, perfectly legal,” Ms. Zerbo writes in an interview via e-mail. Copyright law usually does not cover products utilitarian in nature – which includes clothing. “At the moment (and for the foreseeable future, I think), copyright law does not (and will not) extend to garments and accessories in their entirety.”

The limitations of copyright undoubtedly may concern designers and brands who invest much creative and actual capital in developing new ideas. Though some argue that copying helps fashion brands by propagating trends. Ms. Zerbo is not convinced: “It was argued quite strongly by Kal Raustiala and Christopher Sprigman in opposition to the “Fashion Law Bill,” as well as by the California Fashion Association, whose members include Forever 21…I’ve seen first-hand how much time, talent and other resources go into creating a collection and how it affects emerging designers and their brands when they are copied.”

In fashion, commercial success has always been as much about production and marketing as much as design. Fast fashion could be just the next step in the evolution of the business. Through their product-driven manufacturing business model, they have developed responsive marketing strategies and enviable supply chains.

In response, if a design house cannot or does not want to compete in the marketing or supply-chain front, perhaps they can leverage their the efficiency of their imitators . Fashion shows and marketing campaigns have been edging toward the conceptual, nearly unwearable for some time now, and the final consumer product is always a bit different from the show piece. If fast fashion brands are copying and promoting these early inchoate versions, maybe designers can use the free marketing to their advantage. A savvy marketer could see piracy as previews of the real thing or better yet, market testing of new ideas.

In 2011, the cheeky “children’s book for adults” Go The F**k to Sleep shot to the top of Amazon’s best seller before it was published list largely on the back of leaked “pre-sale” illustrations. Because when the fast fashion companies start copying, it’s on to the next one.

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