“I am not your mood board.” That is what designer Tra My Nguyen said when she called out Balenciaga on social media in July for allegedly “stealing, appropriating and profiting” from her work (and the work of others). In her recent Instagram post, Nguyen claims that a recruiter for the Paris-based design house had seen her work, which was included in a student showcase at Berlin’s Universität der Künste, and requested her portfolio “on the premise that the label was looking for interns,” per CNN. Thereafter, Nguyen claims that the brand published a photo on its own heavily-followed Instagram account of a garment-covered moped that was similar to the textile-adorned moped that was part of her 2019 masters project. In a statement, Balenciaga said the image was “not based on the work of any artist.”
Just days later, burgeoning jewelry designer Niccolò Pasqualetti accused fellow Kering-owned Bottega Veneta of copying his designs for its Resort 2021 collection. The “copycat” creations were released a year after Pasqualetti says that he sent his portfolio to Bottega Veneta “in good faith” while interviewing for a job with the Italian fashion brand. Now, skip back to 2017 for a moment, and a similar situation was unfolding: Zhou Tong, who was a student at Parsons in New York at the time, accused Viktor & Rolf of copying his work. Tong argued that designs that bore a striking resemblance to his showed up on Viktor & Rolf’s runway during the Autumn/Winter 2017 couture shows after he had submitted his portfolio to the Paris-based fashion brand in hopes of securing an internship.
A Larger Pattern of Call-Outs
These instances are part of a larger pattern that has seen designers across the board publicly call foul on big brands for allegedly hijacking their designs. Tong, Nguyen, and Pasqualetti’s claims are slightly more nuanced than those that populate the general pool of copycat call-outs that have permeated the fashion industry almost always by way of social media, though. The designers at hand claim that instead of merely plucking inspiration from various sources, including social media, as is common practice in creative industries, such as fashion, the brands at issue (allegedly) had first-hand access to their work because they had sent them their portfolios.
Given that these specific types of allegations – namely, those lodged by young designers against bigger brands after the brands have allegedly had access to their work in the context of job interviews/opportunities, design competitions, etc. – continue to come up, it is worth asking what, if anything, can designers do to protect themselves and their creations against copying?
The reality is not necessarily a rosy one for designers, at least not from a preventative perspective. “There is not that much a designer can do [to prevent copying],” according to Olivera Medenica, a partner at New York-based firm Dunnington Bartholow & Miller, who specializes in intellectual property. Against that background, she says, “One thing I would perhaps do is protect a picture of the design with the Copyright Office, or all of the pictures [or sketches] in the design portfolio as a collection. That way, at least there is proof that the design existed at a certain point in time prior to the infringement (assuming the design itself can benefit from copyright protection), even if it is not the three dimensional garment or accessory.”
Imagery, after all, tends to be easier to protect (as a whole) from a copyright perspective than things like clothing, handbags, and footwear due to the separability requirement imposed upon useful articles.
While that would likely not be enough to deter infringement (particularly by a much larger party), Medenica notes that this approach “would be helpful in showing who designed it first and when, which can be expensive to show after the fact in terms of legal fees.” That would likely be the most effective thing to do, she states, as she does not generally see “a trademark or design patent an option, as they are not only cost-prohibitive, and such protections would just not work for most of these circumstances.”
A designer that is interviewing with a brand or submitting a proposal in connection with a design competition, for instance, “could, of course, propose a non-disclosure agreement” to prevent the sharing and use of his/her designs, she says, but notes that “it is unlikely that that would fly,” particularly given the David v. Goliath-esque balance of power issues at play in such scenarios. (Those same imbalances also inevitably play out when it comes to initiating and engaging in infringement litigation (assuming merited claims exist), which is part of why the number of lawsuits filed by smaller designers and brands against big brands routinely pales in comparison to the instances in which infringement is alleged).
The Same is True in Europe
The overall lack of options for designers that are looking to prevent copying is generally the same in Europe, where most of fashion and luxury’s biggest names are headquartered. However, that does not mean that aggrieved parties do not have recourse after the fact.
“Fashion designs could be included among applied works of three dimensional art that are eligible for copyright protection in Europe,” assuming that they are original, says Milan-based attorney Daniela Della Rosa, who is a partner at Curtis, Mallet-Prevost, Colt & Mosle LLP. “Therefore, fashion designers and companies interested in bringing actions for copyright infringement [after they are copied] can prepare beforehand by keeping records of the creation process, authorship and ownership, including the chain of title, for their designs.”
These elements will be of “the utmost relevance for succeeding in proving the legal standing to bring actions, as well as originality from a subjective perspective (i.e., the author’s own efforts and reflection of their personality),” she notes, suggesting that relevant records should include “sketches or analogous documents (with their corresponding dates and names, signatures or stamps); correspondence exchanged regarding the creation process; agreements with the individuals involved (either employees or self-employed designers); and any related invoices and proof of payment.”
There is also merit, she notes, is “correctly marking your sketches” – to indicate the rightsholder – “before sharing them” with others, which will further help set the stage for legal action later should infringement occur.
Call-Out Culture
Looking beyond the legalities for a moment, it is worth noting that brands stand to benefit from operating on the opposite end of the bad press that tends to be born from such enduring copying call-outs. This is particularly true in an era dominated by a vicious cancel culture, which trafficks in deep-seated social media fury, and in at least some cases, has the power to tarnish a brand’s reputation and potentially even its bottom line. These risks exist regardless of whether the claims of “copying” or “infringement” have merit from a legal perspective. (Oftentimes, they do not, which is part of why designers air their grievances on social media and not in court).
Interestingly, the potential for reputational damage that comes hand-in-hand with these cases is likely contributing to the seemingly growing number of brands and/or their respective creatives – from Louis Vuitton’s Virgil Abloh, who was recently called out by Walter Van Beirendonck for copying, to Khloe Kardashian and her brand Good American, who were sued for infringement after being called out on social media – that have opted to refute to such claims by pointing to their own alleged sources of inspiration, a pattern that is noteworthy given that brands have traditionally remained silent when faced with allegations of copying.
In response to the call-out directed at it, Balenciaga aimed to set the record straight, asserting that the “copied” design was “inspired by how street vendors sometimes display their merchandise,” and posting a number of of “inspiration images” that showed cars covered in various garments and textiles. The brand, which was expected to pass the $1 billion revenue mark for the first time in 2019, also stated that its recruitment and social media teams “do not share talent information,” but said that it will, nonetheless, “work to better follow up with applicants regarding the status of submissions going forward.”
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