“I think about you everyday. Asshole.” In chicken-scrawl lettering, these words are scratched onto a white backdrop in a digital photo on Mallory Rose’s Tumblr. Rose’s description of her own work can be found on the blog’s home page: “In every manner, this work is who I am and what I stand to create.” But this summer, Rose’s typographic breakup message found an exact replica in the thin slack-faced signature font of fashion retailer Urban Outfitters. The lines are inscribed onto the cover of the company’s line of greeting cards, which were officially released in late August. Underneath the copied image of her design, Mallory Rose comments, “This is so incredibly heartbreaking.”
Rose is certainly not the first to be disenchanted by the hipster-oriented retailer. Back in 2011, independent designer Stephanie “Stevie” Koerner expressed similar distaste when she learned that her necklace designs had reappeared in the fashion behemoth’s glossy catalogs. Countless cases are littered in between, painting Urban Outfitters as a serial rip-off artist.
Yet Urban Outfitters’ plagiarism may sometimes be accidental. In Mallory Rose’s case, a middleman was involved, and it was this individual, Ashkahn Shahparnia, who took the design and sold it as his own to the large-scale retailer. Though Urban’s patronage served as an incentive for Shahparnia’s plagiarism, the company does not bear complete responsibility. Nonetheless, the amount of attention Urban Outfitters has drawn is remarkable, as the media is only too happy to decry the originality of retail’s most ironic player.
“Not cool Urban Outfitters, not cool.” This was the admonishment given to the retailer by jewelry artist Koerner, calling Urban out on its alleged rip-off of her work. “My heart sank a bit. The World/United States of Love line that I created is one of the reasons that I was able to quit my full-time job.” Koerner had titled each individual necklace she created “I heart” followed by the name of a state, and the new line under Urban Outfitters was named “I Heart Destination.” Since Urban Outfitters not only used the same design but also similar names, it is hard not to come to the conclusion that the company was at the very least “inspired” by Koerner.
The plot thickens, as does the company’s audacity. Urban went so far as to issue a public statement in response to angry designers and consumers stating it “unequivocally” denied copying Koerner, pointing out that “a quick search on Etsy for ‘state necklace’ reveals several other sellers with similar products ... who offered their wares as much as a year earlier than Ms. Koerner.” Having injected a healthy dose of uncertainty as to the originality of Koerner’s work, Urban Outfitters concludes by confidently declaring it will continue to sell its collection of necklaces.
But what is originality anyway? It is difficult by definition to trace the roots of inspiration. “Virtually every work is ‘inspired’ to some degree by the works that came before it. Whether ‘inspiration’ rises to the level of ‘plagiarism’ is a determination that must be made on a case-by-case basis; the acts in question will fall somewhere on a spectrum, and there is no single ‘bright line’ from an ethical perspective,” states Charles Colman, an acting assistant professor at NYU School of Law who studies intellectual property law. With the waters of originality already murky, should the designers have the right to legally claim a certain fashion design as their own?
When dealing with intellectual creations, the traditional approach is to set up protective measures in order to foster a more encouraging environment for creativity. “If a designer is able to redesign a platitudinous idea into something marketable, regardless of the artistic degree or interpretations associated with the piece, it has not only been creative to a certain extent in transforming the platitude into something attractive, but it has also been brave enough to do so in a highly uncertain environment of a design market, in which criticism is much more common than praise,” Columbia College sophomore Adriano Fernandes states.
In fact, the problem may not lie solely in the profit-seeking ways of Urban Outfitters, but with the fashion industry as a whole. Fashion designs in the U.S. are not protected by copyright law, so it should be of no surprise that large corporations have long made a habit of stealing designers’ creations and offering consumers lower-quality, cost-minimized versions of the same product, creating a culture of fashion piracy in which retailers are free to make money off of others’ designs, as in the Mallory Rose case. “Urban either didn’t check on the background of the so-called ‘artist’ that sold them somebody else’s pieces, or they just didn’t care, and it’s sad to say but I think both those possibilities are equally likely,” Columbia College sophomore Sida Chen laments.
But while trademark law has been extended to fashion, copyrights haven’t been—and some may want to keep it that way. Kal Raustiala, a UCLA law professor, has stated that obtaining copyright protection for fashion designs would be unnecessary for, and even detrimental to, the industry: “The copying that takes place doesn’t harm the creator, but incentivizes the creator to create more and sell more. So it’s paradoxically beneficial. ... One of the problems with copyright protection makes trends harder to happen.”
It seems strange that the interlacing LV monogram and the red-soled heels of Christian Louboutin are protected, yet nifty designs like heart-shaped cuttings in state-shaped metallic plates aren’t. But this has always been the case in the fashion industry, and American designers have grown accustomed to it. The fashion companies certainly have—Urban Outfitters steals from individual artists even as it complains about Forever 21 selling cheap versions of its designs. These stores aren’t trend leaders, but companies aiming to profit by jumping onto the bandwagon before the bandwagon has even started moving.
Yet the fashion industry is a peculiar realm, home to such notions as the “piracy paradox,” a contradiction of sorts that alludes to the constructive effects of rip-offs. According to this theory, imitators help drive up demand for the imitated as low-end copycats release designs based on the latest runway shows, building up anticipation for the actual release of the coveted attire.
Last September, Senator Charles Schumer proposed the Innovative Design Protection Act of 2012. The senator’s attempt at extending copyright protection to fashion designs ultimately failed, yet angry bloggers and incendiary tweeters are keeping the fight alive. When I was examining Rose and Koerner’s posts on their various social media platforms, the amount of support showered upon the artists as well as the criticism directed at Urban Outfitters was staggering.
Currently, patents are all that independent fashion designers and artists can work with to protect their intellectual property. Given the ephemeral nature of the industry, however, patents are almost never an option, for patents take much longer to process than fashion’s frenetic season-to-season pace. There is also the option of trademarks, but those can only be ascribed to logos and other brand-revealing insignia, not the designs themselves.
So should fashion be copyrighted? Many see the merits. There’s the classic question of creative incentives and the risks that designers face. Shedding more light on the cost of creating, Fernandes states, “The designer is ultimately an entrepreneur, who is courageous enough to let his creativity overflow and make up a marketable good after being subject to a scenario of so much uncertainty and criticism as the design world is.” And it’s a harsh world out there: “It’s not surprising that we see so many anonymous and excellent designers in web blogs that seek not to identify themselves. They’re out there, open for the harshest criticism, hardly ever being duly praised for their courageousness in showing off their peculiarities as artists,” Fernandes adds.
Columbia Law professor Scott Hemphill worries about the direction design innovation may take given a lack of copyrights, especially as copyists who copy in bulk flood the market: “The rise of mass fashion reduces returns on innovation. ... It also affects what kinds of innovation ends up taking place,” Hemphill says. Today, only trademarks can be used in fashion law, and trademarks are self-limiting in that only the big brands have a need to claim them: “By distorting innovation in a direction of established players, this ends up leaving independent designers out in the cold.”
With such limited means of action, it is no wonder that artists have reacted so strongly. “I’m always contacted about use of my work, even when it’s not for profit—people tend to alert me if they see any of my pieces crop up on other sites or accounts without credit,” Chen says. The Internet watchers and bloggers of the world play fashion police now, warning designers and artists of copies. And what do creators do once they find out about these rip-offs? Post it on Facebook and watch the likes (er, dislikes) mount, or have fans tweet their outrage at a fashion firm’s latest transgression. Without legal remedies, appealing to the masses may be designers’ only choice.