Itsy, Bitsy, and Vulnerable? The Need for Greater Jurisprudence in the World of Fashion
In June 2013, Ipek Irgit debuted her bikini line Kiini. Fun and flirty, the crocheted, triangle bikini soon became all the rage among Instagram models and stylists. By 2014, the swimsuit was featured in Vogue.com, Women’s Health Magazine, and even named “the hottest bikini this summer” by People magazine. [1] While the designer’s business was booming, she was also facing significant obstacles. Irgit’s biggest hurdle? The hundreds of counterfeit Kiinis that swarmed the Internet and were creating profit for others off of her work.
In the world of fashion, there is a fine line between inspiration and replication. While most large retailers avoid getting involved in the details of copyrights since fashion trends are constantly changing, smaller businesses and entrepreneurs must take on the legal burden of securing copyrights to protect their work. Copyright law, when applied to fashion, however, is not as cut and dry as it seems. In fact, traditional copyright laws, which were not originally drafted with fashion in mind, aimed instead to “promote the progress of science and useful arts.” [2] While distinctly individual creations can often be found within the film and publishing industries, which benefit from this ban on imitation, the fashion industry is dependent on adaptations of previous “art” for new creations as designers build off of one another’s work to advance trend cycles. In other words, strict copyrights on products within the fashion industry would prohibit designers from being creatively inspired and using work similar to that of their predecessors to produce the newest trends. There is therefore a need for greater jurisprudence in the fashion industry that protects the work of designers from strict replication, yet simultaneously permits the adaptation of past designs.
The line between strict replication and adaptation of past design, however, is tenuous, as can be seen in Navajo Nation v. Urban Outfitters (2016). In the case, the plaintiff filed a lawsuit claiming that Urban Outfitters (UO) had unlawfully used the Navajo name, including designs and motifs associated with it, on a number of produced items. Since 1943, the Nation has registered ‘NAVAJO®’ as a trademark among 86 additional trademarks with the U.S. Patent and Trademark Office. The plaintiff argued that the “Navajo” name was integral to the business of tribal artisans’ arts and crafts and, by profiting off of it, Urban Outfitters came into unfair competition with their craftsmen. [3]
The defendant, meanwhile, argued that the term ‘Navajo’ “is a common, generic term widely used in the industry and by customers to describe a certain design/style or feature of clothing,” and even called for the cancellation of the tribe’s trademark registrations. Despite the plethora of trademarks that serve to protect the Navajo Nation, the court sided with Urban Outfitters stating that ‘Navajo’ is not “famous” enough as a tribal trademark to qualify under the Federal Trademark Dilution Act of 1995 (FTDA). Essentially, the Dilution Act defines the term ‘dilution’ as “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.” [4] Previous courts have also found that dilution can also occur as a result of “blurring” or “tarnishment” by using a mark in an unwholesome context that reflects adversely upon its original meaning. [Source]
With “Navajo hipster panties” and liquor flasks floating around, it is evident that the Navajo name and its design were used in a manner that distorted their original essence. Despite this, the lawsuit was dismissed, in part because of the court’s assertion that the Navajo name was not considered “famous” enough. Analyzing the FTDA in conjunction with the court decision begs the question: what constitutes a “famous” mark? Relying on a metric based on fame puts the fate of smaller designers and communities, like the Navajo Nation, in the hands of a highly arbitrary system. While adaptation is crucial in the fashion industry, Urban Outfitter’s usage of the “Navajo” name is far from adaptive and only embellishes its products. Loopholes such as these illustrate the fact that legislation like the Dilution Act were not drafted with the fashion industry in mind and must be addressed through proper reform.
While Navajo Nation v. Urban Outfitters (2016) exemplifies one of the many loopholes in copyright law, Star Athletica, LLC v. Varsity Brands, Inc. (2017) provides a glimmer of hope for the future of the fashion industry. In 2016, Varsity Brands sued Star Athletica and alleged that the company had violated the Copyright Act by replicating the striped, zigzagged, and chevron insignia on its cheerleading uniforms. In response, Star Athletica argued that the designs themselves were closely tied to the nature of cheerleading uniforms, as these patterns are common in the cheerleading world.
Despite such claims, the Supreme Court of the United States ruled in favor of Varsity Brands, a small victory for copyright holders in the fashion industry. The Court determined that useful articles, defined as objects “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information”, can be copyrightable if they have features which can “be perceived as a two- or three- dimensional artwork that [is] separable from the useful article and if [they] would be a protectable pictorial, graphical, or sculptural work on [their] own.” [5] Furthermore, the design must be able to be identified on its own, separate from the article of clothing. [6]
The U.S. Supreme Court’s ruling was not only a decisive victory for Varsity Brands but was also a win for designers around the country. The decision established a precedent by extending copyrights to clothing designs, prohibiting the direct replication of unique designs, and has since closed one of many loopholes in fashion copyright law.
When copyright laws were written in 1976, the United States economy was heavily oriented towards manufacturing and had not yet developed a robust fashion industry. As a result, contemporary designers and legal officials today are left to navigate an extremely convoluted and ill-defined system of statutes, which have financially burdened retailers and fashion creatives. In Ipek Irgit’s case, the designer’s swimsuit was replicated by a number of brands including Victoria’s Secret, Barneys, and Bergdorf Goodman. While Irgit eventually settled out of court with the former swimsuit giant Victoria’s Secret in Kiini, L.L.C., v. Victoria’s Secret Stores Brand Management, Inc. (2016), the entrepreneur still incurred a significant loss in profits, despite having copyrights which were supposed to protect her design, due to the replication of her design by others. [7]
Both Kiini and Navajo illustrate the urgent need for legislative reform to address fashion design piracy within the American fashion industry. The U.S. statutes should work to emulate more robust laws on copyright such as the European Union’s, which extends copyright law to cover the design of an item and not just the fabric prints and signature design elements. Despite current loopholes, new precedents such as those set in Star will continue to pave the way for emerging designers, hopefully leading to an overhaul of the fashion industry and comprehensive legislative reform.
[1] Katherine Rosman, “The Itsy-Bitsy, Teenie-Weenie, Very Litigious Bikini.” The New York Times, The New York Times, 20 Dec. 2018, online at www.nytimes.com/2018/12/20/business/kiini-bikini-lawsuit-ipek-irgit-solange-ferrarini.html (visited March 13, 2019).
[2] “U.S. Constitution - Article 1 Section 8 - The U.S. Constitution Online.” Article 1 Section 8 - The U.S. Constitution Online - USConstitution.net, www.usconstitution.net/xconst_A1Sec8.html.
[3] United States District Court of New Mexico. Navajo Nation v. Urban Outfitters. 19 Sept. 2016 (visited March 13, 2019).
[4] “15 U.S. Code § 1125 - False Designations of Origin, False Descriptions, and Dilution Forbidden.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/uscode/text/15/1125 (visited March 13, 2019).
[5] “What Is a ‘Useful Article?".” Hg.org, online at www.hg.org/legal-articles/copyright-faq-what-is-a-useful-article--32153 (visited March 13, 2019).
[6] United States Court of Appeals for the Sixth Circuit. Star Athletica, L.L.C., Petitioner v. Varsity Brands, Inc., Et Al. 22 Mar. 2017.
[7] United States District Court for the Central District of California. Kiini, L.L.C., Plaintiff v. Victoria’s Secret Stores Brand Management, Inc. 28 Oct. 2015.