image: Unsplash
This may have been the year that we officially lost touch with what it means to operate within the bounds of fashion and its existing mass of prior art. Yes, we have collectively stooped to a lowly level of meme-ified copycat calling-out – both by way of social media and cease and desist letters, alike – that looks a bit more like bullying than merited legal argument or educational enlightenment, while simultaneously forgetting that fashion is (and has almost always been) inherently derivative. Not only does this pattern of behavior lose sight of what fashion is, it arguably does little to enrich the industry and the discourse surrounding it.
It is not lost on me that this is coming from someone whose first widely-read blog post in 2011 pitted two lookalike bracelets against each other and called “copy.” However, you will notice a marked void of such content on this website in recent years, in large part because what I have learned in the six years since that post was published is that, put simply, not everything that looks similarly is a “copy,” and that the practice of fashion design, given the industry’s rich expanse of archival offerings, is nothing, if not dependent on the creative’s ability to look to the past to fashion the future.
Fashion has long operated in an interesting space, legally, due to the fact that so much has already been done. For instance, centuries before Jeanne Lanvin founded her eponymous house, the oldest established couture house in France, a plethora of silhouettes, prints, and other design elements were already in play, thereby helping to create a domain of foundational features for high fashion (and other art forms) to look to for inspiration to varying degrees.
With that in mind, much of the “new” designs that are introduced by way of the runway each season tend to be derived largely from existing creations … and not just one existing design but also the string of references leading up to it.
This is not news.
In fact, this is very much how design works or should work, at least, in a rational sense. Given that there are realistically only so many ways to cut a pencil skirt, drape a Grecian-inspired gown, and/or depict a certain variety of florals, for instance, existing elements are – more often than not – amalgamated into more modern, and oftentimes, more temporally appropriate/wearable representations for the current time, in order to create something “new.”
Copyright law – which is, of course, not necessarily a friend of fashion in the U.S. (more about that here) – recognizes that the adopting of existing elements is something at the heart of creation, regardless of the medium. This is demonstrated by the fact that copyright law provides protection for works that are not entirely novel but are “based on or derived from one or more already existing works.”
In this vein, copyright law protects “compilations,” or works based on existing elements, as long as the elements included within those compilations “are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work.”
Patent law, another sect of intellectual law, observes something of a similar concept by providing legal protection for inventions that serve to make improvements upon existing products. This class of patents – called improvement inventions – add something to an existing product, incorporate new technology into an old product, or find a new use for an existing product.
This is a lot like how design – fashion industry-specific or otherwise – functions.
When very few things are earth-shatteringly novel (look at the prior art of a patent application if you are skeptical about how novel even some of the most innovative new inventions are; there is always an earlier iteration of some kind, in some form), design tends to require an inclusion of at least some already-existing features. The merit of design is not judged solely by its ability to reinvent the wheel, after all.
This is not to say there is no value to be derived from calling foul on blatant line-for-line, and in some jurisdictions, illegal, recreations of original works, because there is. This has proven a compelling and oft-effective way for designers, particularly those who lack the resources for litigation, to fight back against actionable design piracy. i.e., infringement.
It is also worth noting, however, that this tactic and the sentiment behind it has, in the rather recent past, morphed into something of an over-indulgent iteration of what it once was. It now tends to go much too far, and this can be seen in cease and desist letters that lack legal grounds (the recent matter between Lisa Marie Fernandez and Emily Ratajkowski immediately comes to mind). It is also often depicted in social media call-outs, which, while they may come from a noble place, often lack much-needed context.
In its current form, these copying call-outs have come to function more as bullying than any form of insightful attention to imitation. (Note: Instances of “imitation” and “inspiration,” although they may ultimately look alike, are completely different animals, and we would all do well to remember this).
While this may prove to be inherently click-able content, and a way to build a monetizable business, particularly in a time when “transparency” is a hot buzzword and younger generations are actively obsessing over the archives of fashion’s favorite brands, shaming designers for looking to the past for inspiration (without doing so much as considering the long line of references that exist in conjunction therewith, i.e., those that pre-date the so-called “original”) is simply not how fashion is supposed to work.
This is true even if (or better yet, especially if) it is easier than ever before, thanks to the advent of Vogue Runway (nee Style.com) and other sources, to identify a designer’s closest inspiration, temporally speaking.
In short: It seems we have collectively chosen to forget that fashion thrives on inspiration, and in nearly every case, more than one single source of it, and at the same time, quite often facilitates the proliferation of larger-scale trends, as distinct from say, legally-actionable imitation or infringement. With this in mind, in 2018, why don’t we strive to celebrate the necessity – and dare I say, beauty – of inspiration in fashion, instead of labeling it all as imitation for the sake of clicks?
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