The Copying of Independent Fashion Designers: Perils and Potential Remedies in a Post-Star Athletica World.

• Author: Wang, Lisa

Table of Contents Introduction I. The Copying of Independent Fashion Designers A. Two Cases of Design Piracy 1. Case study: K. Tyson Perez, HardWear Style 2. Case study: Kari Fry, SUBSURFACE B. The Ubiquity of Design Piracy C. Concerns Raised by Close-Copying 1. A utilitarian perspective 2. A moral-rights perspective II. The Viability of Legal Claims After Star Athletica A. Changes to IP Protection for Fashion After Star Athletica 1. The lead-up to Star Athletica: the useful article doctrine and the issue of separability 2. The Court's decision in Star Athletica 3. Implications for the fashion industry: real or imagined? B. Remaining Concerns for Independent Designers Wishing to Sue 1. Cost 2. Becoming defendant rather than plaintiff III. Nonlitigation Avenues for Redress A. Social Media Shaming as an Extralegal Enforcement Method 1. How and when it works 2. Limitations and concerns B. Pro Bono Representation C. The Copyright Claims Board Conclusion Introduction

Fashion is a powerhouse industry. In 2022, the worldwide apparel market generated approximately $1.53 trillion in global revenue, (1) with U.S. revenues amounting to $312 billion. (2) In 2018, the industry employed over 75 million individuals worldwide and was valued at over $2.5 trillion. (3) Fashion is universal: "Everyone wears clothing and inevitably participates in fashion to some degree." (4)

But fashion is also more than just the clothing a person chooses to wear. It has significant cultural and historical value. The trends of each era "reveal society's values and aspirations"--from the utilitarian, resource-saving designs that proliferated during both World Wars to the norm-breaking patterns and silhouettes of the 1960s. (5)

Relatedly, fashion can be a tool for social change. Civil rights activists in the United States "wore their 'Sunday Best' at protests to demonstrate they were worthy of dignity and respect as they challenged the institutions that kept Black people at the bottom of the social hierarchy." (6) Women in the 1970s used experimental styles--denim, miniskirts with bloomers, pantsuits--to "challenge the idea of what society regarded as a 'feminine' dress." (7) More recently, demonstrators wore knitted pink "pussy hats" during the 2017 Women's March on Washington to protest vulgar comments made by President Donald Trump about his predatory actions toward women. (8) T-shirts with messages such as "Black Lives Matter" and "We Can't Breathe" have been used to signal support for the ongoing fight against police brutality and systemic racism. (9) And an up-and-coming sector of fashion dubbed "healthwear" is producing garments that are better suited for individuals with disabilities, from shirts that allow for the easy insertion and removal of catheters to gloves made specifically for wheelchair users. (10)

At the same time, the fashion industry is capable of inflicting significant social harm. Environmental damage is one of them: Clothing production is responsible for 10% of global carbon emissions--more than what is created by all international flights and maritime shipping combined. (11) The fashion industry also significantly exacerbates water scarcity in regions around the world (12): In 2020, it took 3,000 liters of water to produce one cotton shirt and textile dyeing accounted for approximately 20% of wastewater worldwide. (13)

The fashion industry, and in particular, "fast fashion"--clothing that is designed, created, and marketed to be both trendy and cheaply available (14)--has a "human cost" as well. (15) The need for cheap and quick production "contributes to the exploitation of low-wage labor, particularly in the developing world." (16) A recent study of forty companies, including major brands such as H&M, Zara, and Nike, found that "not a single one of these brands paid a living wage to all workers in their supply chain," even after "numerous pledges" to do so. (17) Furthermore, this exploitation disproportionately affects women--who make up approximately 80% of garment workers--and children. (18)

Fashion also gives rise to disputes over ownership. Some of these disputes concern allegations of cultural appropriation, wherein "a member of a relatively dominant culture [is accused] of taking a traditional cultural expression and repurposing it in a different context, without authorization, acknowledgment and/or compensation, in a way that causes harm to the traditional cultural expression holder(s)." (19) An oft-cited example of such appropriation is the use of Native American headdresses in costumes or fashion shows. (20)

Another form of ownership dispute takes place when one party copies another's design and passes it off as their own. Otherwise known as "design piracy," (21) this phenomenon is a longstanding and ubiquitous practice in the fashion industry, (22) made all the easier by the fact that fashion designs have historically been afforded few intellectual property (IP) protections in the United States. (23) While there is disagreement in the literature over the role copying plays in fostering innovation in fashion, (24) it is agreed that copying runs rampant throughout all segments of the industry. (25)

Though each of the aforementioned problems with fashion undoubtedly merits its own line of scholarship, this Note focuses on design piracy in the United States--specifically piracy involving the taking of small, independent designers' work. The designers who suffer from this type of piracy are likely to be women. (26) Many of them are likely people of color. (27) On average, they earn far less than the celebrity designers we see featured prominently in the media. (28) Thus, when an independent designer is copied, they have much more to lose than do the Forever 21s and Zaras of the world. This Note argues that such copying is a unique and problematic phenomenon which does not yet have a simple or ideal remedy, but which may be addressed through multiple avenues--not only litigation, but also alternative enforcement mechanisms.

In the background of this discussion lies the assumption that the fashion industry and its issues are important and deserving of attention. This assumption is far from universal. Despite all of its promises and perils, fashion has long been dismissed as unworthy of significant intellectual attention, relegated to the realm of the frivolous and the feminine. (29) In fact, the House Report for the Copyright Act of 1976 explicitly dismissed the possibility of protecting "ladies' dress." (30) This trivialization, I believe, is a serious mistake. As this Note will demonstrate, fashion design piracy implicates important issues such as racial equity, the environment, and moral rights.

The Note proceeds as follows: Part I argues that the copying of independent fashion designers is a widespread phenomenon that raises a number of social and IP considerations. It presents case studies of two realworld designers to illustrate its point. Part II evaluates the potential for victims of copying to seek legal recourse through copyright infringement claims. Specifically, it examines whether the viability of such claims has increased after the Supreme Court's 2017 decision in Star Athletica, L.L.C. v. Varsity Brands, fnc., (31) which many have viewed as increasing copyright protection for fashion designs. It argues that while at least some in the fashion industry have since used Star Athletica to file suit over copied designs, there remain practical barriers to taking legal action, such as cost, that will continue to hinder independent designers. Finally, and in response to the conclusion of the previous Part, Part III evaluates three nontraditional avenues through which designers may seek redress after being copied: social media shaming, pro bono legal services, and the newly established Copyright Claims Board. It concludes that while each avenue has its benefits and limitations, social media shaming can be a particularly effective tactic that approximates at least some of the goals of litigation.

1. The Copying of Independent Fashion Designers

   This Part argues that the copying of independent fashion designers is a longstanding phenomenon that raises a unique set of utilitarian and moralrights concerns.

   A. Two Cases of Design Piracy

   In this Section, I aim to provide a window into the all-too-common experience of having one's work copied by presenting case studies of two independent designers, both of whom had their designs copied by fashion firms. The case studies draw from telephone interviews with the designers, which I conducted in January 2022 for the purposes of this Note. Unless indicated otherwise by a footnote, the information stated in each case study was provided by the designer during their interview.

   1. Case study: K. Tyson Perez, Hard Wear Style (32)

      K. Tyson Perez's journey into the fashion industry began when he was a student at Parsons School of Design in New York City. "I wanted to be a full-on designer designing apparel," he told me. "Then, two or three semesters in, I realized that I was into the styling aspect of fashion. Garments, but also accessorizing and creating a ... look. So I made a shift into fashion styling and completely fell in love with it."

      Thus began a fifteen-year career as a stylist. Along the way, Perez started a digital fashion magazine, UNVOGUE, which aimed to "buck the system of fashion." As a Black designer, he felt strongly about this mission. "[T]he fashion industry is very white," he explained. "That starts with the editors and the designers, who then decide to use the models ... and then everything becomes very white."

      Eventually, Perez also began making custom pieces to use when styling looks for editorials. Among his first creations were baseball caps with brass letters on them. Whenever Perez posted photographs on Facebook, he would receive comments from people asking where they could buy the hats.

      At first, he was resistant to the idea of selling...