Published On: Fri, Mar 31st, 2017

My Other Bag’s A Knock-Off: How Copyright Works In The Fashion Industry

Last year, luxury handbag manufacturers Louis Vuitton tried to sue a California-based company called My Other Bag on the grounds that they violated copyright laws for imitating the French designer’s distinctive tote bag.

My Other Bag sell tongue-in-cheek, eco-friendly canvas bags, that are made to look like expensive designer bags. The obvious ironic sentiment was lost on Louis Vuitton but not on the judge who declared that the bags were “not likely to cause confusion or the blurring of the distinctiveness of Louis Vuitton’s marks.”

Although Louis Vuitton were clearly overzealous in the pursuit of this legal case, it does touch on an interesting point; understanding fashion copyright can be confusing. Where is the line between inspiration and theft in the fashion industry?

Parodying in fashion

The reason why the case was thrown out is because the canvas bags were an obvious parody. This point was made succinctly in court by one of the judges who said “I understand you don’t get the joke. But it’s a joke.”

This idea is explained by custom t-shirt printers, Printsome, who argue that fashion parodies are a great way of poking fun of the status symbols normally associated with branded clothing, as well as taking elitist fashionistas down a peg or two. They state that parody is “a tool that the ‘smaller’ people have of levering the system and telling those that are richer, or are in power, that their decisions won’t go without being questioned.” Perhaps fashion parodies that we may have previously considered frivolous and silly, carry more weight than we think.

What is the point of copyright in fashion?

Copyright laws are in place to protect something that is original but not physically functional. For example, a song can be subject to copyright protection, but the abstract (and subjective) concept of ‘fashion’ can not. That’s because the U.S. Copyright Office decided at the beginning of the last century that all fashion is functional—namely the function of keeping us warm. Even though much of fashion today prioritises extravagance over necessity, this rule still applies.

That’s not to say there is no protection for brands out there. For example, specific designs of jewelry, an accessory not often known for its ability to keep people warm, can be subjected to copyright laws. It is also possible, though difficult, to get a patent for an item of clothing if you can prove innovative craftsmanship or process of manufacture.

But a copyright is only applicable to something that is invented, so can’t apply to a shirt or a bag just because it has a distinctive pattern. The most prominent example of patented fashion was Velcro, whose founder, Georges de Mestral, invented the hook-and-loop fastener technology that we take for granted today. Intriguingly, the word Velcro itself is a brand name that has fallen into common shorthand usage much like Hoover, Biro or Sellotape, and has resulted in some copyright issues of its own. Which brings us to our next point.

Due to limitations in patenting fashion, most fashion labels settle for trademark protection. This is how they can protect the logo or the label of their clothing as the property of their brand. In fact, the reason that logos have become so prominent in clothing is partly because of this ruling. The only thing that separates famous brands from other designers often surmount to little ticks or a certain number of stripes. It is these things that make brands different from one another, yet logos can easily be mimicked and patterns copied. Which brings further confusion between paying homage to a brand, and copying it outright.

The fine line between inspiration vs theft

The issue for many designers is that there seems to be a lack of protection from intellectual property theft. Writing for the Huffington Post, George Taylor, Founder and Director at the Creative Industry Hub, states that “sadly it seems that designers/retailers can’t actually own intellectual rights for their designs unless it is blatantly original and unique”

This imbalance in fashion copyright laws was challenged in 2012 when New York Senator Chuck Schumer proposed the Innovative Design Protection Act (IDPA), a bill that strove to grant copyright protection to fashion designs. However, the Act failed to pass in congress, much to the frustration of many designers.

However, not everyone is against so-called knock-offs. In The Knockoff Economy: How Imitation Sparks Innovation, authors Kal Raustiala and Chris Sprigman argue in their favour. In a subsequent TEDx talk on the subject, Raustiala argued that copying can spur new ideas, noting that the fashion industry isn’t thriving in spite of a lack of protection laws, but because of it. The first incarnation of something is bound to be flawed, they explain, and without copying, products will never improve.

As fashion isn’t protected by copyright laws, it makes it possible for designers to tweak and improve upon other people’s ideas. It also makes it possible for the likes of My Other Bag to produce mock canvas bags, or sites like Faviana to produce fake designer dresses for ‘bling on a budget’. When Kate Middleton married Prince William, her wedding dress became highly sought-after, spawning many imitations for brides that couldn’t afford to have Sarah Burton design their dress.

Coco Chanel once said that “Copying is the ransom of success”. While the biggest fashion brands in the world are powerful in lots of ways, when it comes to current copyright laws, they may just have to put a sock in it.