Young Artist v. Textile Giant – A dispute over the limits of replication in fashion

Celine-like shoes, Anya Hindmarch-like handbag… a number of popular high-street fashion shops are often accused of having in their stock nearly exact copies of international fashion house collections. Inditex, a group to which Zara belongs, has also been a target of such allegations.

Apart from discussions over the limits of inspiration in fashion and the critical comments of some designers, such practices are not brought to court often. Moreover, some of the copied designers admit that actually they had nothing against their designs being displayed in high-street shops. Christian Louboutin had quite the opposite approach when he took legal action against Zara in 2011. However, Zara defeated Louboutin in the case which he accused the brand of trademark infringement and copying  Louboutin’s signature red sole.

Yet, this was not the end of the allegations against the Inditex Group. Recently plagiarism accusations came from a young (and, as the lawyers say, almost unknown) graphic designer, Tuesday Bassen. Tuesday is an illustrator. She designs characteristic pop art drawings, pins and patches. Most of her designs are posted on Instagram. It is there where she posted a side-by-side comparison of material patches by Zara with her enamel pins designs. Though one of the designs was slightly modified by Zara (an eye was replaced with a heart), the other designs were nearly identical (https://www.instagram.com/p/BIEGImxgFKe/).

What was the fashion giant’s response to the artist’s accusations? Its lawyers sent a response indicating that, first, Tuesday’s designs were not distinctive enough and thus had poor recognizability in the world and, second, only a “handful of complaints” about Tuesday’s copyright infringement had been submitted to the Group: “when it is borne in mind that millions of users worldwide visit the respective websites monthly [the websites of Zara and Bershka (another brand of the Inditex Group)], the figures clearly put those few notifications into sharp perspective.”

The dispute again raises the question about the limits of inspiration within the fashion world. To what extent are  common imitations and inspirations allowed and to what extent do they constitute copyright infringement?

Trying to find an answer to this question, one has to remember that, at least in light of Polish copyright law, the “inspiration” alone is not copyright infringement, thus it does not need the author’s consent. This is not the case with compilations, i.e. modifications, adaptations and any changes introduced to the original work. Using the latter requires acquiring a set of copyrights – so called derivative rights. Of course, in such cases there is always a problem of distinguishing between the permitted inspiration and a compilation. Does adding/removing an element or a change in color or proportion mean that we are dealing with an inspired object/design? Not necessarily. It seems that if we leave the essential substance/image of a given design or its characteristic motif which “creates” a certain object, our interference is already regarded as compilation. If, however, we use a certain idea (e.g. an idea for a comic dimension of a pin or an open heel shoe), we can call it inspiration.

Notwithstanding the question of copyright, in the case of very characteristic fashion designs, it may be attempted to register them as a trademark or an industrial design and then pursue claims also on these grounds. Louboutin’s example shows, however, that it is not always such an easy path.

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Coming back to Tuesday Bassen’s case – the Inditex Group issued a statement where it declared its “utmost respect for the individual creativity of all artists and designers” and announced that it would suspend the clothes and accessories in question, as well as engage in settlement discussions with the artist’s lawyers.

[1] The red sole of Louboutin’s shoes is a trademark, registered in the United States Patent and Trademark Office – PTO. Similar protection was applied for by Louboutin before the EU patent and trademark offices and similar offices of some other countries. Irrespective of the lost case with Zara, Louboutin also fought a battle in court with Yves Saint Laurent with respect to the use of its red sole. The dispute concerned the use of the red sole in YSL’s collection “Monochrome,” in which the shoes were entirely in one color. In the dispute before an American court, the Court of Appeal confirmed definitively that color may be protected as a trademark. However, the Court also noted that Louboutin had the sole right to the use of the red color on its shoe soles provided it is contrasted with the rest of the shoe. Therefore, there are no grounds for banning the use of the red color on shoe soles in another context, e.g. in the monochromatic collection of YSL’s shoes.