Does the fashion industry have a plagiarism problem? It’s a question the average consumer wouldn’t necessarily think to ask. Walk into a store, snap up a $10 graphic t-shirt, swipe your credit card, walk out. Everything about the transaction feels perfectly above board. But who created the image? Recently, a slew of independent visual artists have come forward to accuse various major fashion brands of using their work without permission or payment.
Topman, Zara, Versace, Forever 21, Lane Bryant, Jeremy Scott—these are just a few of the companies and designers called out by artists for having allegedly plagiarized their work and committed copyright infringement. Often the disputes begin publicly—a bang made on social media—then are settled quietly out of court, all parties involved barred from speaking about it again.
Though numerous cases have made headlines over the past few years, the amount of disputes settled in private or never pursued at all is essentially impossible to quantify. Some artists who believe their work has been stolen never speak up, perhaps unsure of their legal rights, lacking resources, or simply unwilling to challenge a multi-billion-dollar company. However, judging from those instances made public on social media, it is clear that—whether through negligence or disregard—fashion brands continue to take work from artists and designers. So what legal protections do artists have when this happens? What are the emotional and practical difficulties they face when challenging fashion corporations? And how has social media changed the way companies steal and artists fight back?
In February 2013, designer Jeremy Scott debuted his Autumn/Winter collection during New York fashion week. At the time, the magazine GQ described
the pieces as “gloriously whackadoo,” with “everything from furious cartoon-face prints to bubblegum-colored camo.” Shortly after the models left the runway, someone sent famed surf and skateboard artist Jimbo Phillips an image of Scott’s designs. The similarities between Scott’s dripping colorful faces and the designs on boards and decks by Phillips and his father, also an artist, were evident. That same day Phillips posted the pictures to Facebook under the caption “this is crazy!” Others
took to the platform as well, juxtaposing Phillips’s work with eerily similar pieces from Scott’s collection along with a dictate for others to use social media to raise attention.
As the case unfolded, Phillips said his emotions progressed from initial shock, to anger, to disappointment (“It could have been done legit and could have been a cool thing,” he told me over email) before the outpouring of support he received online buoyed his spirits. It’s a cycle of emotion likely familiar to others who have had their work taken.
In September, after filing a lawsuit, Phillips and the company that distributed his skateboards eventually settled with Scott out of court for an undisclosed amount. Following the settlement, Scott issued a public apology, expressing regret that some of his pieces incorporated images “similar” to those of Phillips, adding “I now recognize my mistake and out of respect to their work and their rights, the clothing and handbags at issue will not be produced or distributed.” The saga is emblematic of how disputes between artists and major fashion labels are drawing attention, and resolution, in an increasingly digital age. “Social media played a big role in this case,” Phillips told me. “People blew up about it! Otherwise the whole process could have taken months and by then [the designs] would be out on the streets.”
Julie Zerbo, editor-in-chief of the Fashion Law Blog, pointed to the Phillips case a clear-cut instance of a visual artist mobilizing the protections granted to them under copyright law. “When you copy imagery and put it on clothing [without permission], that tends to give rise to a rather easy copyright infringement lawsuit,” Zerbo said. At its core, copyright law is a bundle of rights afforded to visual artists and designers, among other creators. Copyright provides control over the reproduction, distribution, and sale of original, fixed, tangible pieces—essentially ensuring that artists can reap the economic rewards of their own work.
Why companies and designers infringe and the degree to which they are acting willfully is difficult to determine and likely varies case by case. The successful business models of some fast-fashion companies like Zara—which helped parent company Inditex post 15% gains in net profits last year—include getting clothes to the market as soon as possible in an effort to capitalize on trends and reduce markdowns. This emphasis on speed and the pressures it places on junior creatives mean an artist’s design could be part of a company’s early creative process only to wind up, perhaps unknowingly, on the final product. Across the fashion industry, “there’s no system in place, no checks and balances, to vet the intellectual property rights of the final product because it goes out the door,” said Jeff Gluck, an attorney at Gluck Law Firm P.C who has dealt with numerous copyright infringement cases. And while he says callousness can drive copyright infringement, “it’s not always a sinister act.”