Legal issues the fashion industry is currently facing and how this might impact your business
The term “fast fashion” is a recent entry into fashion’s lexicon. Consumers can now access New York Fashion Week’s runway looks for affordable prices. In Australia, fast fashion generates over $1 billion in revenue and is growing at a rate of 10% per year. But what about the designers that spend countless hours toiling over the original garment that is now being sold for a fraction of the cost?
A four-member panel, including the likes of Seafolly CEO, Anthony Halas and The Australian’s Fashion Editor, Glynis Traill-Nash, gathered at K&L Gates’ Sydney office on 14 October to discuss a different kind of trend. Speaking to an audience of fashion designers, bloggers and brand managers, they discussed the legal issues the fashion industry is currently facing.
A rose by any other name…
The Panel opened the Fashion Law Breakfast by discussing a recent case last year involving a label we probably all know: Seafolly Pty Ltd v Fewstone Pty Ltd (trading as City Beach). The Court found City Beach had infringed Seafolly’s copyright in three artistic works, including Seafolly’s English Rose print.
Under Australian law, copyright is infringed if a substantial part of the original author’s work is used without their permission. Determining whether copied work is a ‘substantial part’ will depend on the quality of the part taken, not the quantity.
Although the line between inspiration and infringement can be notoriously blurry, City Beach purchased Seafolly’s garments and explicitly instructed its designers to develop swimwear based on these samples.
Halas acknowledged the challenge in staying on-trend and retaining the copyright in your designs.
“Every designer receives inspiration from their environment. But designers then take that back to their brand’s DNA and make it unique to their label,” he explained.
He further went on to say that “knocking off” another label’s design goes against the spirit of where the fashion industry should be.
“When you develop a brand, and spend money on a big design team to develop unique prints, and then you see it under another label, it damages your brand.”
The tipping point…
Fast fashion is undoubtedly contributing to a growing number of copyright infringement cases. But what is the tipping point to pursue someone infringing your designs?
Traill-Nash alerted the audience to the expenses associated with going to court, particularly for young designers. With copyright infringement cases averaging $30,000 to pursue, it is understandable why new designers will often settle their disputes out of court. They rarely choose to pursue through costly litigation claims against other designers or even more worryingly, as Traill-Nash pointed out, against High Street Fashion Australian Houses.
Halas says that it comes down to when someone is profiting from your work. For instance, taking your brand’s campaign shots and placing them on another person’s website, and selling the garment for $20.
Protecting Brand Integrity in a Digital Age
Unquestionably, an image’s shareability on social media makes it even easier to infringe copyright. It is a pitfall in what has otherwise been an invaluable marketing tool for designers to promote their brand.
Halas compares copyright infringement in the digital age to a game of whack-a-mole – when you hit one infringement, another one instantly crops up. He receives daily emails notifying him of possible infringement domestically and internationally.
“But where do you stop?” he asks. “It’s inconceivable to pursue every infringer.” Seafolly’s pursuit against City Beach seemed less about monetary compensation but more about preserving the brand’s integrity and their designers. They needed to be seen as tough to deter future infringers.
Protecting a brand’s DNA and its reputation is a common sentiment shared amongst fashion houses. Melbourne designers Discount Universe recently took to Instagram to call out Miley Cyrus for ripping off their signature looks at the Video Music Awards in August.
Cyrus’ costumes designed by Brooklyn designer, BCalla, and worn in her final performance were strikingly similar to Cami James and Nadia Napreychikov’s trademark Third Eye motifs and hand-beaded mouths. This led to Julie Anne Quay, founder of fashion repository, VFiles, publically declaring her support for Discount Universe. In doing so, she explicitly reiterated the importance in protecting a brand’s creative integrity.
So, the lingering question remains – how can designers protect their designs? Designers are able, and encouraged to, register their designs. Design registration, however, can attract a certain amount of risk. It requires fashion designers to file an application before the garment is released for sale. This is where maintaining a design file becomes critical.
The Panel unanimously agreed that designers must be able to demonstrate that their design is an independent creation and point to where their inspiration came from.
Halas says Seafolly had pedantic and diligent designers who were able to demonstrate the evolution of their designs. Maintaining a design file documenting where inspiration comes from seems counter-intuitive to an otherwise fluid, and creative process. It, however, assisted Seafolly in proving City Beach’s copyright infringement.
Creative Destruction in the Fashion Industry
Fashion labels, rather than exhausting energy and funds battling every single copyright infringement case, respond to these challenges by aggressively and consistently reinventing themselves.
In an industry competing against increasingly popular fast fashion houses, Halas says the rapidity of these changes keeps Seafolly on its toes. To ward off potential infringers, they must focus on redesigning, promoting originality and producing high-quality garments, and that, he adds, isn’t a bad thing. His designers and his label must remain ahead of the pack.
Unlike music, art and literature, fashion still does not attract unique copyright or intellectual property protection – there is no Australian Fashion Law or Fashion Act. There is, however, a growing recognition that fashion’s idiosyncrasies require unique protection. And so do Australia’s fashion designers. As the perception shifts from fashion as a utility to Art, the conversation needs to highlight what commercial and legal channels are available for fashion designers to help protect their brand and creative reputation.