Fashion’s legal blind spot: The IP problem behind fast fashion

Bristol law student Willow Knight-Pocock explores the gaps in protection for smaller designers

In 2021, independent designer Bailey Prado accused fast-fashion giant SHEIN of copying 45 of her designs, selling the items for a reported 80-90% reduction. The claim highlights the commercial disadvantage emerging designers face when competing with global fashion retailers, due to the limited success of various avenues of intellectual property law, heightened by the growing impact of social media. While the system as of now may protect the commercial identity of large fashion houses, creative originality is disparately protected, leaving independent artists vulnerable in the era of fast fashion.

The fashion sector’s legal blind spot hides in its evolutionary nature, where trends naturally influence each other, using inspiration as foundational to the sector. As far back as the 1950s, style piracy was said to have “long plagued the fashion field”. The designer’s dilemma, which highlights the tension between inspiration and unlawful copying, demonstrates that the constant circulation of trends makes derivation difficult, ultimately leaving the structural dynamics of fashion piracy as they were 250 years ago.

Raustiala and Sprigman’s theory “the Piracy Paradox”, however, highlights a wider benefit to the fashion industry at the cost of independent creatives. The theory explains that imitation allows for widespread trends, benefiting consumers with lower prices. With SHEIN being the most downloaded app in the US in 2021, it is evident that the piracy paradox was correct in highlighting imitation as fuel to the consumer fire. While correct, it may be beneficial to the wider fashion sector, Raj and Rawat explain through cross-jurisdictional analysis that knockoff production undermines creative labour and distorts competition, causing financial harm and a loss of recognition for young fashion labels. Even larger brands are at risk, with Burberry’s overexposure through cheap copying damaging its luxury position, leaving it to “never fully recover”. So, while inspiration is clearly foundational to the sector, overlooking the experience of emerging artists leaves them at risk of imitation and the ever-growing speed of trend cycles; nonetheless, the foundational nature of inspiration means an expansion in protection could also restrict creativity and innovation. This is the heart of the Piracy Paradox.

What protection, then, does intellectual property actually offer?

Copyright

Under s.1 of the Copyright, Designs and Patents Act 1988, copyright operates under a “closed list system”, consisting of eight categories. Due to the functional nature of garments, fashion design does not neatly fall into any of the categories of protected artistic works, leaving it without copyright protection. Aimed at protecting original artistic expression, rather than ideas, copyright leaves the cut and silhouette of a garment unprotected. A nonfunctional aspect, such as a print, however, can be copyrighted. So, while a dress’s pattern may be protected, its unique shape is at risk. Evidently, the law protects artwork better than garments, raising the idea that intellectual property law is not suited to protect emerging creatives’ originality.

Trade mark

Unlike garments, which are constantly evolving through trend cycles, logos and branding are designed to distinguish commercial origin. Consider Louboutin’s distinctive “red bottoms” or the iconic LV monogram, symbolism that protects the luxury brand’s garments through fitting comfortably within the traditional objectives of trade mark law. While beneficial to large fashion houses, trade mark law demonstrates a hierarchy created by intellectual property law, where a commercial identity receives stronger protection than creative expression.

Design rights

Design rights, in comparison, protect the visual appearance of a garment and consist of two separate concepts: registered and unregistered design rights. Registered rights protect the appearance of new designs with individual character, offering perhaps more protection for originality. However, the high cost and time-consuming nature of registering all garments leave registered design rights commercially unrealistic for small designers. Unregistered rights automatically arise when a qualifying design is created, requiring a three-dimensional design that is novel and not commonplace in the industry. To enforce them, designers must prove they created the design and that the defendant copied protected aspects. For independent creatives, evidence of creation is difficult to prove in an industry that naturally evolves and involves inspiration, leaving it an impractical avenue of protection. While theoretically, design rights may offer the strongest protection, the cost and complexity behind them make them suited to large fashion houses with more resources, leaving imitation to be seen as permissible, since rights can be costly to enforce.

Social media

The increasing use of social media also has an impact on the protection of small fashion labels in the industry. TikTok, Instagram and Pinterest use their algorithm to reward trends, allowing fast fashion companies to develop AI programs focusing on the prediction of consumer demand, highlighting a new era of fast fashion motivated by the use of social media. This phenomenon of monitoring trending styles has now introduced the concept of “ultra-fast fashion”, a growing risk for emerging artists.

Nonetheless, social media not only causes harm but is also a forum for raising awareness. Instagram fashion watchdog Diet Prada uses their platform to highlight misconduct in the global fashion industry, aimed at protecting emerging creatives and exposing large brands that use imitation for profit.

Solutions?

This increasing threat towards independent designers raises the question of whether intellectual property law should be reformed to aid creativity and originality, but how should this be done?

One proposal is to expand copyright protection, treating clothing like other protected categories, due to the invested time and skill it requires. Yet, expanding copyright protection could restrict creativity and freedom, preventing all designers from using inspiration in their pieces, an impact highlighted by the piracy paradox.

A more practical reform could be to improve registration through reduced fees. While increasing accessibility for designers with less financial support, a rapid increase in registration could overwhelm the system, leaving a design unprotected and allowing the trend to pass before the item receives registered rights. Nonetheless, Hill suggests that reforms are necessary for London to maintain its status as a competitive fashion capital, arguing that adaptive reforms, including AI-driven monitoring, are the future for intellectual property.

Ultimately, it is clear that fast fashion is not disappearing, and in an ever-growing online world, social media will only increase the demand for trends. So, with independent designers becoming increasingly vulnerable, it is at least clear that intellectual property law should do more to protect the foundation of fashion, originality, rather than the logos that stand before them.

Willow Knight-Pocock is a second-year law student at the University of Bristol. She is interested in IP and commercial law.