Fashion Plagiarism – Appropriation or Inspiration?

Copying is the foundation of the fashion biz. In 2008 Anna Sui produced a beaded purse copied, bead for bead, in a blatant plagiaristic manner from an original 1920s bag. However there was no law broken because the age of the bag put it outside of any legal protection from being copied.

This past summer I served as an expert witness on a legal case involving a popular sneaker company’s attempt to trademark three existing design elements of sneaker design (toe cap, toe bumper, and plimsole lines on the foxing band.) Two of the elements (toe cap and bumper) were functional not decorative, and therefore not allowed to be trademarked, and all three elements were developed by other sneaker companies before their company adopted their use. The sneaker company lost. While I thought this was a clear case of a company trying to claim ownership of pre-existing designs, precedence does not necessarily win the argument. Christian Louboutin managed to trademark the red sole of his shoes even though Yves St. Laurent had used red soles in the 1980s.

The protection and free use of design elements are not a black and white issue under the law. It is also an issue that is gaining attention with regards to aboriginal works of art.

Unknown

Totemic design sneaker for Adidas, by Jeremy Scott

American designer Jeremy Scott and the British company KTZ have been under fire from indigenous groups for using historical Native American motifs. There is a muddy area between appropriating Native cultural motifs and being inspired by Native artistic designs for contemporary commercial use. A leading argument is often made that many of the motifs are religious (shamanistic) or heraldic (totemic) in meaning and thus sacred and not appropriate for commercial use.

This is going to take a while to sort out as even indigenous groups are not clear on which battles to fight. The KTZ Shaming Page on Facebook is gathering examples of  the commercial plundering of Native designs and I thought two recent additions show the breadth of their argument.

inuit-designjpg.jpg.size.xxlarge.letterbox

A parka photographed in 1922 was the source for a fleece pullover design styled by KTZ. Although altered from the original, the modern piece clearly uses motifs that were copied. The original parka was not trademarked, patented, or copyrighted, and is too old to be covered by intellectual property rights, but KTZ made no attempt to contact descendants of the maker or wearer, nor understand the cultural meaning of the parka’s motifs. The great granddaughter of the original owner of the parka explained in an article that the motifs were shamanistic (the hands offered protection to the wearer.) In a culture with a pre-contact faith based on shamanistic ritual, copying motifs of this nature enters the territory of printing an image of Allah on a T-shirt.

While the parka is clearly a case of fashion plagiarism, another case is not as easy to see why there is a problem. Last year a geometric print dress by KTZ was traced to a similar dress by designer Bethany Yellowtail, who styled her dress after a Crow design from an inherited pipe bag. This case has two big differences from the parka. Firstly, the design was already translated from an original Native work onto a commercially made dress styled by Yellowtail, so the ‘sacred’ argument can not apply, and secondly, I don’t see an exact copy but rather an inspired interpretation of Yellowtail’s dress. Fashion may be an art form but it is also a commercial enterprise and copying is inevitable – that is the nature of fashion. It’s a matter of knowing where to draw the line.

About Jonathan

Jonathan Walford is a fashion historian and co-founder of the Fashion History Museum in Cambridge, Ontario. The FHM maintains a collection of nearly 12,000 artifacts dating from the mid 17th century to the present. Jonathan has authored various books and museum catalogues, including The Seductive Shoe, Shoes A-Z, Forties Fashion, 1950s American Fashion, and Sixties Fashion.
This entry was posted in Fashion. Bookmark the permalink.

15 Responses to Fashion Plagiarism – Appropriation or Inspiration?

  1. Daniel says:

    This has always been one of my favourite knockoff stories mainly because it was so blatant. Even though the original Bus Stop dress itself was an interpretation of 1940s frocks, this was pretty mind-bogglingly blatant – they even copied the print off the 1970s dress!

    https://emmapeelpants.wordpress.com/2007/05/01/kate-moss-at-topshop-what-a-joke/

    I’m told that Lee Bender ended up getting a pretty nice payoff from Topshop….

    • Jonathan says:

      WOW – that is pretty blatant! Good example of an out and out rip-off. I was trying to remember the name of the designer who copied a jacket or vest that had been in a 1970s art exhibition – I think it was the Levi’s art to wear show from 1971. He tried at first to cover-up his plagiarism but it was too obvious…

  2. Daniel says:

    Nicholas Ghesquiere copying Kaisik Wong for a 2002 Balenciaga collection?

  3. liz says:

    On the subject of cultural appropriation … or perhaps just of nightmarishly poor taste … what did you make of Miss Universe Canada’s sexy totem-pole arrangement?

    • Jonathan says:

      I missed that news bit… yikes… not a good look, unless you’re Cher, performing Half Breed in c. 1975…

  4. Maria says:

    I have a question, if that dress on the left is copied by the one of the right side? The designer on the left claims it as her design and not a copy, just inspired. But for me it is clearly a reproduction of that 60s dress designed by “Terri Petites California”!
    https://goo.gl/photos/gcjhGHnG3YyX2ZLeA

    • Jonathan says:

      I am sorry, but I don’t see the image you posted a link to relating to Bethany Yellowtail’s dress at all – did you post the right image?

      • Maria says:

        Ohhh I’m sorry, i don’t know why the link isn’t working, maybe you can see these links below:

        https://img1.etsystatic.com/114/1/7819258/il_570xN.857610267_81lk.jpg -> the original dress of Terri Petites

        http://shelovesdresses.myshopify.com/collections/frontpage/products/genna -> in my eyes the copy cat?!

        I was discussing with the designer, but she denied it.

        • Jonathan says:

          AH – I see – I thought the links you gave WERE the same dress! That is why I didn’t understand what you were saying.I thought you were comparing them to the Bethany Yellowtail dress in the article. I definitely see a copycat situation between those two dresses you sent links to. WOW – unabashed copying! The designer for Terri Petites probably was never recognized for their work, and the company is now defunct, so although it is an unabashed copy, nobody will likely complain who has a legal right to the 1960s design.

          • Maria says:

            Awww okay 😀 No, i didn’t want to compare to the dress in your article, sorry about the confusion!
            But thank you for your opinion you gave me here. I didn’t care in that moment about the legal right when i saw the dress of her, but i was angry about the fact that she refused about the fact of plagiarism. For me there is no problem if she makes a reproduction and claimes it as such, but she states as her design!
            She even invited me to type “Peter Pan collar dress” in shopstyle and i would find a view hundred dresses that look exactly the same! She said: take a shape, a garment and idea, change it slightly and it’s yours.

          • Maria says:

            Sorry, of course *few hundred dresses…

  5. Pingback: Introduction – copyright6

  6. Pingback: Reference List | copyright6

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.