How Artists Are Fighting Back against the Fashion Industry’s Plagiarism Problem

Isaac Kaplan
Sep 19, 2016 4:35PM

Photo courtesy of Kesh.

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?

Drawing Attention

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.”

Clearcut Infringement

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.”

The Impact

Those artists impacted may wonder: At what point does routine negligence become willful? Earlier this year, allegations surfaced that pins and patches for sale at Zara were near verbatim copies of various works by more than 40 artists and designers. One of them, Adam J. Kurtz, told me that Zara’s rampant behavior “is not a mistake.” And the outcry that followed the scale of the Zara case indicates the public is inclined to agree.

Inditex, Zara’s parent company, didn’t respond to Artsy’s request for comment, but told The Cut earlier this year that it “takes all claims concerning third party intellectual property rights very seriously” and was working to resolve the matter.

While public accusations often result in the clothing in question being yanked from the store’s website, there is no telling if the piece also vanishes from store shelves. “If every time a designer called [a fast-fashion company] out for copying something they pulled it from their website, they might not have that much to sell,” Zerbo said, adding “Anything short of a cease and desist letter or getting served with a lawsuit doesn’t really deter them.” Indeed, while Inditex told The Cut it had removed the works from sale, according to Kurtz, he and others saw some of the pins in stores even after the controversy surfaced and work was pulled from Zara’s website.

Regardless of intent or remedy, it’s a shocking and disheartening experience to see years of hard work snatched up in an instant. In 2013, visual artist Kesh launched a collaboration with American Apparel, which saw her capsule collection of edgy black and white t-shirts and hats inspired by her own self-portrait quickly take off with everyone from Wiz Khalifa (photographed wearing a tanktop) to casual shoppers. The pieces marked the culmination of four years of work. In 2015, a remarkably similar design appeared on a Versace shirt, produced without the artist’s knowledge and retailing for more than 20 times the original’s cost. Kesh lamented the state of the fashion industry on Instagram. “Why can’t these companies, these brands, these people create their own work? What happened?” she wrote (the quote has been slightly modified for clarity). Versace didn’t respond to a request for comment, though the shirt has long ceased to be available for sale.

Is Social Media a Double-Edged Sword?

Upon discovering infringement, social media posts like those of Phillips and Kesh are often “the one way [artists] are able to express themselves,” said Andrew Gerber, an attorney and founder of Kushnirsky Gerber PLLC, who specializes in these types of cases. And though not every artist has the wherewithal for a lawsuit or the following to challenge a big brand online, the public is usually supportive when cases are made visible—something that all the artists I spoke to cited as one of the few heartening aspects of their experiences.

But Gluck—who represented Kesh—generally cautions against taking to social media to attack a brand. “One of the easiest and worst mistakes to make is to learn about an infringement and immediately to go to social media and start posting about it and encouraging others to post about it,” Gluck said. “It gives the infringer potential leverage to use against you.” If infringement isn’t made public, companies may be more inclined to settle to avoid potential embarrassment, he said. Gluck notes that artists should be very careful their statements are accurate and not libelous.

The role of social media predates the actual discovery of infringement. Zerbo points out that platforms like Instagram and Facebook have allowed smaller brands and artists to “make their name” and cultivate a following. But that same visibility means the designs are more accessible to copiers. Indeed, when an indie artist or designer who frequently puts their work online sees that work infringed, “you start to question [...] why you share,” said Kurtz, reflecting on his experience.

Faig Ahmed, an Azerbaijani artist whose iconic bleeding rugs are the background on his Twitter account, says Topman sold shirts that depicted his image without his consent. “Plagiarism is the act of disrespect to artists, galleries, museums, curators who are usually working for very low salaries but just doing their job because they simply love it,” he wrote me. Despite these feelings, he’s choosing not to pursue legal action at this time. Asked for comment, a Topman spokesperson said the company was aware of the allegations around a shirt “sold by concessionaire, Globe Europe, on the Topman website,” adding that “Topman had no input in the design, creation or selection for sale of the t-shirt.”

This past Wednesday, the artist Shantell Martin took to Facebook to accuse the brand Lane Bryant of ripping off her linear, black-and-white words and drawings—both on a t-shirt but also in the background of an Instagram post advertising the shirt. A fan sent Martin a link to the shirt, wondering if it had been a collaboration—it wasn’t, though it was part of a Lane Bryant collection meant to celebrate authenticity. In less than 48 hours the shirt and Instagram post were gone, a speed that Martin told me she credits to the outcry that followed after she highlighted the case on social media. Still, she’s frustrated because the debate has been couched as one of accusation—rather than clearcut theft. “The story is the artist is accusing the brand of X, Y, and Z. Actually no, the brand just did this.” Martin told me. It’s a framing she believes prevents more permanent remedy to the issue. “Let’s talk about how we make this not happen in the future or why it’s actually happening.”

The Law

Those looking for a financial recompense for infringement should look to the courts. And artists do have a relatively robust arsenal of legal tools to wield. Along with copyright violation, if a company simply associates an artist with its brand or when copying the work removes a signature, these acts may infringe on additional rights possessed by artists. For this reason, Gluck advises artists to always, somehow, get a signature onto anything they produce.

When lawyers do get involved, the most likely outcome is a settlement—sometimes in as little as 48 hours. Of the dozens of cases Gluck has handled, not a single one went to trial, though the underlying specifics of each lawsuit are different. When representing Kesh, Gluck used the artist’s collaboration with American Apparel as a way of demonstrating her market value, an important factor in asserting financial damages—it’s a big-ticket benchmark many artists unfortunately don’t have. And as Gerber notes, what the lawyers are often fighting for is “the very thing that allows artists to pay the rent or buy groceries—license fees.” These fees are what a company would have already paid if they’d sought permission to legally use an artist’s work in promotional material or in an article of clothing. Gerber ballparks that such fees usually run between $20,000 and $50,000—a relatively insignificant amount of money for a major corporation. But a legal victory can provide a sense of vindication and acknowledgement of the original infringement for the affected artists.

If they so choose, large brands have the financial wherewithal to drag their feet in an attempt to force a lower settlement. “They know they’re going to get negative publicity, but they don’t care and do it anyway,” said Gluck. To bolster their defense, artists can register their work with the U.S. copyright office. Though a relatively simple process, the legalese means it still can require a lawyer. And registration costs $35 per work—a potentially prohibitive cost for prolific artists attempting to protect their whole output. Instead, they may choose to register highly visible works. While artists reap the benefits of copyright protection as soon as they “put brush to canvas,” as Gluck says, registration means that plaintiffs automatically recoup their attorney’s fees and receive statutory compensation.

An Uphill Battle?

Despite the numerous tools at their defense, artists still face “huge inequality in terms of the amount of resources,” said Zerbo. Some artists can’t afford to divert money or energy to a lawsuit. In her Instagram post accusing Zara of theft in earlier this year, the L.A.-based artist and designer Tuesday Bassen said she’d already spent $2,000 on an attorney simply to draft a cease and desist letter. Zara’s parent company then responded by rejecting Bassen’s allegations in a letter “so blatantly disrespectful it went viral,” said Kurtz, who was moved to set up an Instagram account and a website, Shop Art Theft, to catalogue the instances of alleged theft by the brand. Among other opinions expressed, the letter said Bassen’s work had a “lack of distinctiveness” and noted that no one would associate the designs with her.

Such arguments read as an attempt to prevent artists from taking action. To counter, many lawyers who work these cases caution against trepidation. “There is an ingrained historical misconception that litigation and hiring an attorney to pursue these matters on one’s behalf is going to be overly costly and excessive,” said Gluck, noting that lawyers will often take these cases on a contingency fee basis, meaning the lawyer is only paid if the case is won. “Our goal is to make it as easy as possible of an artist—even if if they have no money and are living paycheck to paycheck—to reach out to us,” said Gerber. According to Kurtz, Bassen has found an attorney to represent some of the 40 artists in negotiations with Zara’s lawyers on a contingency fee basis.

One wonders if the relationship between artists and fashion brands has to be so antagonistic. Positive collaborations, like that of Kesh with American Apparel, are evidence that companies and independent artists are at their strongest working together. Indeed, earlier this year Gucci announced a partnership with GucciGhost, a skateboarder-turned-street artist who illicitly used the company’s imagery for his work before entering into a formal arrangement with the Italian label. (He recently tagged the company’s Fifth Avenue flagship store—with permission.)

Such instances can’t distract from a pattern of plagiarism that impacts numerous, economically disadvantaged artists—many more than will ever speak out. But some hope that through social media and lawsuits, repeat offenders will be tarnished in a way that makes them think twice before they take another artist’s work, or will be motivated to institute robust systems to prevent that from happening again. “We will be a blight on their history as a company and that’s great. That feels really good,” said Kurtz of Zara. “Let’s fuck ’em up.”

Isaac Kaplan

Cover image: David Ramos/Bloomberg via Getty Images