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It’s Not All Gucci: How Fast Fashion Companies Steal Designs Online Spoiler: they do it quickly and impersonally, with Congress’s blessing.

AbstractFashion design is not protected under the Copyright Act and there are no laws, copyright

or otherwise, that protect fashion designs in their entirety. In contrast, film, artwork, music, poems, and architecture are all protected by copyright law. Fashion designs have been historically shunned by the courts, since clothing is primarily functional and functional items cannot be copyrighted. All previous attempts to amend the Copyright Act to include fashion design have ultimately failed to generate enough legislative steam to become law.

This paper will focus on how the Internet has been a catalyst for fashion knockoffs through social media and other tools used by fast fashion companies. Together, the Internet and fast fashion barrel towards a future that threatens to bulldoze incentives to preserve the cultural traditions of careful, innovative fashion design. The intricacies, quality, social reflection, and self-expression that have defined fashion for centuries may likely be replaced by impersonal garments that reflect not a culture but a manufacturing efficiency. 

Finally, this paper will propose a familiar solution: amend the Copyright Act to include fashion design. Unlike previous attempts, however, this solution seizes upon today’s specific political moment, and is more likely to succeed. To name a few, data privacy alarm, antitrust enforcement, environmental interests, and gender movements have all played game-changing roles in media and society as recently as the past few months. The main takeaway is that the Internet enables the fast fashion industry to copy innovative designs with a reckless expediency that threatens creativity and necessitates an amendment to the Copyright Act to include fashion design.

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INTRODUCTION

In February of 2019, Kim Kardashian posted an Instagram photo posing in a gold

metallic cut-out dress created for her by husband designer Kanye West. She had not worn the

dress in public yet. Fast fashion company Missguided quickly posted a photo of its own knockoff

version of the dress, captioning the image of the similar-looking model: “The devil works hard

but Missguided works harder @kimkardashian you’ve only got a few days before this drops

online.” Kardashian successfully sued the company for $2.7 million. Unfortunately, to view the

suit as a win against fashion design infringement would be profoundly misguided. Kardashian

prevailed on claims for her rights of publicity and personal trademark, not copyright

infringement.

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“Fashion” is defined as “a prevailing custom or style of dress, etiquette, socializing,

etc.”.1 “Design” is “organization or structure of formal elements in a work of art; composition.”2

Fashion design may thus be defined as a form of art that represents culture. The first part of this

paper will delineate the requirements of copyright law, examine how fashion design fits within

the U.S. copyright framework as expression, and outline a brief history of fashion to illuminate

why it is imperative that fashion design obtain protection under the Copyright Act. The second

part will introduce the Internet’s impact on the industry, including how fast fashion companies

use the Internet, including social media and data collection practices, to steal designs from

independent creators. Finally, this paper will discuss previous attempts to amend the Copyright

Act and why amendment should happen now.

I. Fashion: an art that should be included in the Copyright Act

a. Copyright law generally

To enjoy protection under U.S. copyright law, subject matter must be an original work

fixed in a tangible medium of expression.3 Ideas are not copyrightable, nor are functional items.4

The 94th Congress of the United States delineated these requirements under the Copyright Act of

1976, and they remain settled law today. Firmly rooted in the language of the Constitution,

copyright law exists to promote the progress of knowledge, which scholars label the “utilitarian

justification.”5 Those creative works that enjoy Copyright Act protection include books, photos,

architecture, songs, sculptures, paintings, drawings, movies, and choreography.

As a general rule, clothing is not protected under copyright law because clothing is

functional. Among other uses, clothing covers our bodies to conform to cultural norms, shields

1 Dictionary.com2 https://www.dictionary.com/browse/design3 §1024 Id.5 Fromer, Sprigman 10.

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us from precipitation and coronaviruses, facilitates ease of movement amid lounging and athletic

pursuits, allows our hands to fearlessly grip unfinished lumber, etc. Jewelry, because it is not

functional and therefore more similar to a sculpture, is protected under copyright law.6 In

contrast, food is not copyrightable, no matter how Instagram-able it looks.7 The legal

justification is that individuals who desire intellectual property protection for their useful designs

can apply for a patent.

At times, useful items contain expressive, creative elements. A lamp with a decorative

sculpture for a base, for example, may be functional for its bulb while also existing as a piece of

decorative art.8 When a design element incorporated into a useful article can be identified

separately from, and is capable of existing independently of, the utilitarian aspects of the article,

that design element may be copyrightable.9 Accordingly, surface designs on clothing such as

graphics, textile prints, or lace patterns, if sufficiently original and fixed and expressive and

separable, may be protected.

b. Why buildings are protected despite their functionality

Architecture is a relatively recent addition to U.S. copyright law. Before 1990, buildings

were subject to the same separability analysis as clothing and other useful articles, and only

protectable as pictorial, graphic, or sculptural works.10 Like sketches of dress designs, blueprints

and other architectural drawings were protected under copyright law, but the useful aspects of

the buildings themselves were not.11 However, in 1990, Congress specifically added

“architectural works” as a category of the Copyright Act, despite their functionality.

6 Cite7 Cite8 Mazur v. Stein9 §10110 9911 Id.

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Buildings marked a striking, abrupt departure from the settled caselaw and statutory

language excluding useful articles from copyright protection. Humans live, sleep, shop, eat,

work, and learn in buildings, enclosed within a roof and walls which protect from rain, hail, UV

rays, surveillance, invasion. Houses provide privacy, cover, warmth – in a similar way to how

clothing does. Architecture has a vibrant cultural, historical, and artistic past, just like fashion

does. Mobs of architects did not storm Washington D.C. demanding protection for their

creativity. So what explains its place in the Copyright Act?

Architecture’s special treatment is the direct result of the United States’ membership in

the Berne Union. The Berne Convention for the Protection of Literary and Artistic Works is a

treaty comprised of 179 signatory countries out of the 195 total countries in the world.12 The

international agreement provides rights to authors of literary and artistic works and requires

protection of architectural works by each signing country.13 The Convention also provides

“moral rights” to authors, which is the right to claim authorship of the work and the right to

object to any mutilation, deformation, or other modification of, or other derogatory action in

relation to, the work that would be prejudicial to the author’s honor or reputation.14 Further, each

member country is required to provide copyright protection to authors of other member states

and imposes minimal requirements of copyright laws for its member states.15 Many member

countries, including European Union countries such as France, provide copyright protection for

fashion designs, but unlike architecture, fashion protection is not formally a minimum

requirement of compliance with the Convention.16 Keeping the Berne Convention in mind at the

outset of a U.S. fashion law analysis may make fashion’s prospects look a little more hopeful.

12 https://copyrighthouse.org/ countries-berne-convention/.13 99.14 WIPO.15 Julie Tsai/journal article.16 Id

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If the functionality restraint did not exist under U.S. copyright law, or if the Berne

Convention somehow compelled its inclusion, fashion would fall squarely within the parameters

of protectable subject matter. Fashion designs are fixed – they exist in a tangible form on fabric.

Fashion designs are regularly original; at times, designers take months or even years to complete

a design. Though trends are recycled, it is rare that they are recycled in exactly the same way.

Finally, and perhaps most importantly, fashion is expressive.

In a sense, fashion is a type of literature. When we purchase an item of clothing, we

purchase the story. Imagining ourselves in those clothes is to imagine where we’ll go in them,

what we’ll experience there, who will see us, what they’ll think of us. Entire personalities and

experiences are enveloped in the clothes we buy – fantasies and dreams that have yet to

transpire. Influencer and celebrity marketing capitalizes on this fiction: if we buy the clothes and

products promoted by the individuals we admire, we can embody their character and lifestyle.17

It’s idealism.

If the United States were based in more of a personality theory of intellectual property

law instead of a utilitarian theory, fashion would have a more promising outlook. Under the

personality theory of property, autonomy, creative expression, and personhood are at the center

of ownership rights.18 Personality theory describes consumer philosophy: we are what we own.19

However, the utilitarian theory dominating copyright law in America emphasizes the economic

17 The apparel retailer Zara, for example, has 300 designers who scour the Internet, runways, historical fashion trends, and consumer data in order to embody these visions for us in their designs. In 2019, Katie Holmes was photographed hailing a cab while wearing a sand-gray cashmere bra and matching cardigan. The photo and outfit went viral, and Zara designers quickly produced a similar matching set that was worlds more affordable than the $520 original. Sweater sets are now available by most major fashion retailers. In designing the set, Zara expressed the fantasy: comfort and fashion, beauty, celebrity power, popularity.

18 15.19 Id.

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incentives to create. As long as designers continue creating, there is no need for the law to step

in. However, this view is problematic for independent creators, as will be discussed.

c. A brief cultural history of fashion

Fashion, its history and essence, may best be defined by looking first at what most people

think of when given the word “fashion”: luxury brands. Gucci, Louis Vuitton, Hermes, Prada,

Burberry, Versace, Fendi, Dior, Chanel – each of these multi-billion dollar high fashion houses

originated in Europe.20 These are the brands swaddling our American celebrities in satin and

feathers on red carpets every year, the only entities more exclusive than intellectual property

itself. Until New York City joined them in the 20th century, Paris, Milan, Rome, and London

were the sparkling “fashion capitals” of the world, meaning they had the most significant

influence on international fashion.21 Particularly notable is France, the home of haute couture and

Louis Vuitton – the world’s highest-valued luxury brand at $32.3 billion.22 American brand

Oscar de la Renta was not founded until 1965; Ralph Lauren a couple years later in 1967;

Tommy Hilfiger 1985; Kate Spade in 1993; Tory Burch, 2004. Cite. While America did have

Coach as of the 1940s, its luxury fashion names were only a drop in the ocean of European

fashion houses.23

Today, the women’s apparel industry is more than one-and-a-half times more lucrative

than the men’s apparel industry, a $64 million difference.24 The origins of this phenomenon may

be traced back at least to the 1800s, when the ornamentation and cost of women’s clothing

indicated the wealth and social standing of the family.25 Upper-class women’s clothing showed

20 https://theluxurymakers.com/2020/11/09/meet-the-top-10-most-luxurious-fashion-brands-of-2020/.21 https://en.wikipedia.org/wiki/Fashion_capital.22 https://fashionunited.com/i/most-valuable-fashion-brands/.23 Cite.24 Statista.25 https://fashion-history.lovetoknow.com/fashion-history-eras/europe-america-history-dress-400-1900-c-e.

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that the men in the family could afford to spend spectacular amounts on elaborate clothing.26 On

apps like Pinterest with a weighty apparel promotion aspect, sixty percent of users are women.27

Poshmark, an app for re-selling clothing, reports that 97% of users are female.28 Teenage girls’

“shopping haul” videos flood TikTok, YouTube, and Instagram. Fashion’s history, in many

ways, is women’s history.

If Europe shaped the fashion industry, America mobilized it. The United States patented

and distributed the first commercially successful sewing machine, developed the sized-paper

pattern, and invented machines that could cut multiple patterns.29 The computer was invented in

Pennsylvania; the Internet was invented in California.30 Online shopping is credited to an English

entrepreneur, but only once he was armed with the American tools.31

The history of women’s fashion provides a strong foundation for why fashion is not

“functional” within a traditional meaning. One look at the unnecessary extravagance of women’s

dresses of the past, complete with corsets and metal hoops, and the word “functional” is perhaps

the last word that comes to mind. American women during the women’s suffrage movement,

such as Amelia Bloomer, believed that the popular women’s fashion at the time handicapped

physical activity and freedom.32 They wore trousers and the color white to express political

viewpoints.33 Later, during World War II, women began wearing jeans, collars, and more

practical styles symbolizing their place next to men in the war efforts.34

26 Id.27 Cite.28 Cite.29 https://fashion-history.lovetoknow.com/fashion-history-eras/europe-america-history-dress-400-1900-c-e.30 Cite – could also mention Facebook, etc. 31 https://www.iwdagency.com/blogs/news/the-history-of-ecommerce-how-did-it-all-begin.32 https://fashion-history.lovetoknow.com/fashion-history-eras/europe-america-history-dress-400-1900-c-e.33 Id.34 https://www.crfashionbook.com/culture/a22736609/feminist-style-evolution-history/.

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Throughout history, women’s fashion continued to reflect moments of liberation and

empowerment: youth showing skin, pop culture embracing short “boyish” haircuts, celebrities

wearing black during the “Me Too” movement.35 American women have used fashion to express

who they want to be, who they are, the stories they want told about them, and their autonomy for

centuries. Its functionality has been an accessory, an unavoidable side effect, to its ultimate

expressive existence. Additionally, the way trends survive and revive across time and space

shows that clothing is not and will never be solely functional: it is historical, cultural, and

expressive. Out of the 535 members of the 1976 Congress, fourteen were women.36

It may be because Europe views fashion as more of an art than America that fashion is

not protected under copyright law like it is in Europe. After all, most American luxury brands

were not popularized until after 1976, unlike the celebrated Italian and French houses founded in

the 1800s. It may be that the men in Congress saw their own suits as so primarily functional that

they could not possibly deserve copyright protection. Maybe America has always cared more

about the revenue from apparel than the art behind it (the ultimate utilitarian justification).

Whatever the reason, Congress was willing to overlook functionality of buildings in order to join

the Berne Convention, but has not been willing to overlook the functionality of clothing to

protect creative expression.

II. How the Internet has changed the fashion industry

a. Fast fashion companies use the Internet to steal designs rapidly and efficiently

“Fast fashion” is a term used to describe inexpensive clothing produced rapidly by mass-

market retailers in response to the latest trends.37 The growing popularity of e-commerce has

35 Id.36 https://www.pewresearch.org/fact-tank/2021/03/10/the-changing-face-of-congress/.37 Oxford Languages cite.

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enabled these companies to grow larger and more profitable every year, with no signs of slowing

down anytime soon.38 Fast fashion companies have been criticized by environmentalists39 and

human rights activists for their disregard for sustainability as well as the unsafe conditions in the

factories where underpaid laborers manufacture the clothes.40 Because of its business model, it is

evident that fast fashion retailers do not spend significant amounts of time and energy to create

original designs. Rather, they rip off designs from other companies, independent creators,

celebrities, and luxury brands.41 Some companies are quicker and cheaper than others, and the

immoral business practices vary according to the company. Overall, however, fast fashion

companies like Forever 21, H&M, Missguided, ASOS, and SHEIN are notorious for stealing

designs, and the Internet, coupled with American law, makes it easier for them to do so.

Forever 21 is an example of an American fast fashion company that serially steals

designs. Forever 21 steals even stitch-by-stitch designs. It can under American law. It takes

lawsuits as they come - and they do come (over 50 since its founding) - and settles them neatly

before moving onto the next.42 An infamous example is the Wildfang WILD FEMINIST t-shirt.

Proceeds from the shirt designed and distributed by Wildfang were donated to the ACLU and

Planned Parenthood. The shirt became so popular that Forever 21 created a knockoff, fully

profiting off the matching shirts without matching Wildfang’s charitable contribution.43 The

38 Cite.39 Arguments have been made that fast fashion companies make fashion trends more accessible to younger or less affluent communities. A human rights paper may address these arguments more robustly, but it is important to recognize that while the clothes from these companies are “cheaper” for US consumers, they have giant costs elsewhere. For example, in Myanmar, 700,000 garment manufacturers work to supply fast fashion retailers – a third of which are making less than two dollars a day. Additionally, the enormous environmental impacts of the clothing industry will ultimately affect impoverished families the most.40 Cite.41 Cite.42 https://www.pdxmonthly.com/style-and-shopping/2017/08/did-forever-21-knock-off-wildfang-s-most-famous-shirt.43 Cite.

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Forever 21 “designers” are scavengers, plagiarizers – but the best independent creators can hope

for is that the store will take their design off the shelves, which it did in the case of Wildfang.

Independent designers often cannot afford lawsuits, so they opt to “expose” the companies on

social media or hire an attorney to draft a cease-and-desist letter (which is still expensive).44

Admittedly, companies are comprised of humans, and humans can make mistakes. When Urban

Outfitters copied designs from an independent creator, however, they chose to start carrying that

creator’s products rather than deny responsibility.45 Companies like Forever 21 who are in the

news repeatedly for copying independent designs cannot be said to be making mistakes.

The story is different for a fast fashion company based out of Europe, like Spain’s Zara.

Spain provides copyright protection to fashion designs as long as they are objectively original.

The European Union, which Spain is a part of, recognizes the moral rights of those designers to

claim authorship of their creations.46 In 2019, the Court of Justice of the European Union decided

the landmark fashion infringement case Cofumel, which stated that the degree of copyright

protection afforded fashion designs does not depend on the degree of creative freedom exercised

by its author. As long as it is original, it is protected. Zara, therefore, has to get creative with

designs, which results in more choices for the consumer. Further, Zara’s company policy is to

never make the same design twice, no matter how popular, which indicates a commitment to

originality over profit.47 Zara provides an example showing that big retail companies don’t need

to go out of business to save independent creators – they just need to be held accountable

through copyright laws.

44 Cite. 45 Cite.46 Cite. – double check journal article and cite47 https://jezebel.com/how-forever-21-keeps-getting-away-with-designer-knockof-5822762.

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The Internet, through social media and e-commerce, allows fast fashion companies to

produce new designs more rapidly than ever before. As soon as a design is posted on social

media, companies rush to reproduce it. It becomes difficult to identify the original author of the

design, unless they post about the injustice and the post goes viral. Before the Internet, designs

were still copied, but at a much slower rate – the design had to be worn in person or printed

somewhere before retailers could copy it. However, as in the case of Kim Kardashian, Instagram

allows fast fashion companies to copy before the design even sees the light of day. For example,

fast fashion brand Boohoo can manufacture a product in two weeks, and ASOS adds 4,000 new

styles to its site every week.48 If fashion designs were afforded copyright protection, the DMCA

and first distribution right could prevent scenarios like Kardashian’s.49

Further, the rise of social media influencers allows companies to leverage internet

celebrities’ popularity to sell products. While celebrities and other kinds of influencers have

existed in the marketing world for years, social media speeds up the process. The Internet

provides a world where someone can become a celebrity in a matter of minutes through going

“viral.” Information spreads more quickly than ever, no longer burdened by borderlines and

logistics. Within one’s own home, there is an endless catalog of knowledge. Browsing the

Internet can take us to Greece, Italy, France; buying products from influencers can make us

beautiful, trendy, loved. It only takes an influencer a matter of minutes to snap a photo, type up a

post, and reach into hundreds of thousands of people’s homes. “Swipe up” and “link in bio” have

become part of our regular lexicon, hyperlinks the tunnel we travel to reach the promised yet

elusive light. The speed at which marketing can occur under the influencer model facilitates

more marketing than ever – and more sales for retailers.

48 https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m.49 Have to explore this claim a bit more.

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Additionally, while countries in the European Union protect their citizens from invasive

social media marketing strategies by fast fashion companies, the United States does not. The

General Data Protection Regulation, implemented in May 2018 in the EU, prevents companies

from collecting personal data about people located in the EU without their consent.50 The GDPR

means that fast fashion companies based in Europe, like Zara, ASOS, and H&M, cannot collect

unlimited data from European consumers as easily, cannot track their location and activity so

accurately, and cannot predict their preferences so readily.51 However, the United States has no

federal data protection laws when it comes to social media data collection. Fast fashion

companies are able to target consumers in the US with unprecedented precision and no

regulation. Companies predict trends faster, predict behavior faster, and sell products faster.

b. Independent creators are hit hardest by unprotected, stolen designs

The designers who need American copyright protection the most are independent

creators. It is unlikely that a luxury brand loses money when a street vendor or fast fashion

company sells a counterfeit luxury product, because it is unlikely that the purchasing consumer

had the means to buy from the luxury brand in the first place.52 The brand does not lose a sale

and has the resources to continually create new products.53 However, when fast fashion

companies and larger brands steal designs from independent creators, those creators lose their

entire livelihood and do not have the same resources to create a new product.54

For example, in 2012 a small bikini designer in Brazil sold a bikini to a New York

resident named Ipek Irgit.55 Irgit returned to New York City and founded Kiini, LLC in 2013, a

50 Cite GDPR.51 Citation for this claim.52 Cite journal article. 53 Id. 54 Cite law review.55 Cite.

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bikini boutique that had brought in nine million dollars as of 2018.56 Irgit sent photos of the

Brazilian bikini to a Chinese manufacturer who was instructed to reproduce replicas of the

bikinis, and subsequently sued Victoria’s Secret and other brands for infringement of the copied

designs. The settlements were worth millions, and the original Brazilian vendor received

nothing.57

c. What the future might look like if we keep going without copyright protection

One potential result of fast fashion in a fashion copyright-free America is that the United

States will fall behind other countries in terms of innovative, creative fashion designs. Other

countries with copyright protection may be able to enshrine the fashions of their culture with

names and legal records, with stories of creators and ownership and success that will transcend

generations. Without the legal protection, designers will not create as much, and fast fashion

companies will steal the designs produced in other countries or create impersonal garmets that

express nothing at all. The United States may thus fall behind: our designs may mold

amorphously into each other, faceless and generic. Those who push back on copyright protection

for fashion law do not buy into this scenario. Creators will create, they say. Fashion designers

will innovate forever because it is art, it is expression, and it indicates status and taste. However,

fashion is too important to our culture and to those independent designers spending time and

resources to create to risk this outcome. Regardless of outcomes overall, fashion design is

inherently valuable and inherently deserves protection.

Another potential scenario is that the fashion designers will leave. They may pack up

their ideas and operations to sail away to the European Union where they have dignified legal

rights, taking jobs and money away from America. Or, given the efficiency of communication

56 Cite 656. – Law review57 Id.

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across time and space with the Internet, they may not have to leave their New York City

apartments at all; instead, they may find an agent overseas to incorporate under, buy property,

and email over the designs a few times a week. Either way it is not an American label, and

therefore not formally indicative of American expression.

d. What the future might look like if we provide designers with copyright protection

Those who oppose copyright protection for fashion designs assert that granting exclusive

rights in designs will result in less innovation. Competition, after all, benefits consumers by

creating the best product at the end of the day. When everyone can create the same lime green

platform heel crocodile-print sandal, eventually the ultimate lime green platform heel crocodile-

print sandal will emerge. Further, if only one designer has the right to produce that design, that

designer can set the price high. Poor consumers will be robbed of crocodile sandals and the

economy will have less activity, harming both the community and the market.

However, it is unlikely that copyright protection would chill innovation in fashion design.

Europe has operated under this legal framework for years, and Zara is still the company with the

highest apparel sales in the world.58 They are able to create affordable, trendy products quickly

without going out of business. This is because they use a modicum of creativity – they alter their

designs here and there to create original products.59 If all companies followed this model, more

designs would result, there would be more innovation, and there would be increased

individuality among the consumers who buy and style those products.

As with other copyrighted materials, not all fashion designs would be eligible for

protection in the event that fashion design is added to the Copyright Act. Patterns like stripes and

plaid, for example, would be too generic to be protected. Further, ideas cannot be protected, such

58 Statista.59 Notably, Zara does not consider themselves a fast fashion company and has been taking important steps toward sustainability.

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as the idea for a pink blazer, or a spaghetti-strap tank top. One could imagine the legal

framework for fashion design infringement to follow a substantial similarity analysis: how many

elements do the designs share? Perhaps the way the design is marketed – including the way the

design is styled and the models used – may play a role in the analysis.60

A foreseeable defense to infringement in this world is a public domain defense: these

designs have existed for years, when no Americans received protection. Original designers may

also try to call new designs “derivative” of their original designs and bring claims that the work

was not licensed. Determining what is derivative of an original work may get complicated in this

new territory of fashion design without years of case law to inform the court’s analysis.

III. Why the Copyright Act should and can be amended successfully now

a. Previous attempts to protect fashion design

The Fashion Originators’ Guild of America was formed in 1932 and entailed an

agreement between designers and certain retailers that agreed to restrict their purchase orders to

only those designers’ original designs. The Supreme Court struck down the guild on antitrust law

violations.61

Previous legislative attempts included the Design Piracy Prohibition Act (2006), the

Design Piracy Prohibition Act of 2009, the Innovative Design Prevention and Piracy Prohibition

Act of 2010, and the Innovative Design Protection Act of 2012. The majority of these bills failed

to generate enough action in committee, and did not ultimately pass. However, they do indicate

that this is something Congress has thought about recently, and perhaps with the right

justifications, energy, and story, fashion designs may one day soon obtain protection in America.

b. Why now is the right time

60 See Jacobus Rentmeester v. Nike, Inc., 883 F.3d 1111 (2018). 61 Custom-Tailored Fashion Design law review article

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Now is the right time to bring fashion design legislation to Congress because of today’s

collective social conscious recognizing small businesses and independent creators. Discourse

encouraging support of local restaurants, Etsy shops, and other small businesses has been at the

forefront of the public mind. Many know a loved business or family-run operation that had to

close its doors this year because of lost sales. It has been a year when the government has bent

laws and contracts, forcing businesses to deny customers and preventing citizens from assembly.

Of all laws, the Copyright Act is not an unbendable fortress – as recently as 1990, a new

category was added. Lawmakers may be more flexible with the law and sympathetic to the

position of independent creators in this moment.

Second, and relatedly, the FTC has ramped up antitrust enforcement, showing a

government-led willingness to break up big business, particularly Internet-based businesses like

Facebook.62 While antitrust law worked against fashion design in 1932, the marketplace has

changed drastically with the introduction of the Internet, allowing Internet companies

specifically to grow to dangerous, monopolistic levels.63

Third, European law is influencing American law now possibly more than ever. The

General Data Protection Regulation has spearheaded copycat legislation in multiple U.S. states,

including California, Indiana, and Virginia.64 Sustainability and environmental laws are also

trickling down from Europe’s community-conscious regulations. The United States should take a

second look at the Berne Convention, recognize its arguable obligation to provide more rights to

creators in order to comply, and add fashion law to the Copyright Act.

Fourth, feminist movements and minority movements have highlighted racism and

suppression of female, black, and Asian voices. Among those independent creators whose

62 Cite Facebook/Instagram antitrust case63 Cite64 Cite (and fact-check to see more states).

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designs get swallowed by larger fashion companies are black, indigenous, and minority

designers.65 Across America, apps, billboards, and other campaigns to support black and Asian-

owned businesses have emerged. These social and political moments are an opportunity to use

copyright law to recognize and protect independent, minority creators. Further, Congress is more

diverse than ever, with more female Congress members and minority Congress members than

ever before, potentially providing the right climate for this legislation to pass.

Finally, the Internet is not slowing down. As fast fashion companies capitalize on

technology to become more profitable, their resources grow. Search techniques find new,

innovative independent designs more quickly, thus more rapidly taking away the livelihood of

hard-working designers. Independent creators who do not have the legal means to file lawsuits or

even send cease and desist letters will only become smaller in relation to the growing legal teams

at the helm of giant retailers. With increasing power and money, these companies may be able to

hire lobbyists to block copyright legislation.

c. The Copyright Act must be amended to include fashion design

Although Congress should amend the Copyright Act to include fashion design for the

cultural and business reasons stated throughout this article alone, it may also be legally obligated

to amend the Copyright Act to comply with the Berne Convention. America is not a country that

recognizes as many moral rights as other peer countries for creators, but through the language in

the Berne Convention it may be under an obligation to do so.66

CONCLUSION

65 Cite article66 I need to build out this paragraph a bit more

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The way fast fashion companies steal designs without consequences threatens to

undermine the expressive, historical significance of fashion in America, and endangers the

creativity of independent creators. European law provides us with an alternative method of

curtailing the malicious activity of fast fashion companies, thus saving independent businesses,

without putting fast fashion companies out of business entirely. Further, there are cultural and

business incentives for Congress to amend the Copyright Act to include fashion design. The

functionality restriction is not a compelling reason to avoid copyright protection for fashion,

since Congress has demonstrated willingness to overlook the restraint in the not-so-distant past

with architecture. The Internet did not exist when the Copyright Act was written, and the way the

Internet has changed commerce, culture, psyches, and geographic boundaries necessitates

increased protections for independent creators. Fashion itself, on principle as an art form,

deserves a place next to poetry, literature, paintings, and compositions. The consequences that

could result if it is not protected like all other art forms demand that Congress acts as quickly as

fast fashion itself.

Alternate paper titles: Online Shoplifting Faux vs. Spade (a play on Roe v. Wade/Kate Spade) How the Internet Keeps the “Faux” in Fashion Faux Pas