Earlier this week, independent fashion designer Bailey Prado took to Instagram to call attention to a different fashion label that, according to her, copied her “whole life.”
Prado was talking about the “fast fashion” brand Shein. The wildly popular brand is famed for its imitations of popular, luxury items at bargain-basement prices.
For example, items that may sell on Prado’s website for up to $300 typical appear as copies on Shein’s app for less than $20. However, where Prado’s items are hand-crocheted and made in relatively small numbers, Shein’s replicas are mass-manufactured using cheaper methods and materials.
However, none of this has slowed Shein’s growth. If anything, it’s made it more popular. According to the app tracking firms App Annie and SensorTower, Shein’s app even surpassed Amazon in the terms of downloads and has helped propel the company to a $15 billion valuation.
But, as popular as the app is, it has also been highly divisive with many fashion designers accusing it of selling inferior rip-offs of their work.
According to Prado, she and her fans found some 45 of her designs on Shein’s site. Some of those items have been taken down, but others remain up, and Prado says that Shein has not reached out to her.
For her part, Prado says that she would “love to see justice or compensation” but that, “informing people about the consequences of fast fashion and bringing attention to what is happening to small brands is enough for me.”
However, even if she were to pursue some kind of legal action, she would likely find it difficult to impossible. Not only does fashion enjoy very limited copyright protection in the United States, but Stein is a Chinese company, making any litigation even more difficult.
What this story has done is shine a new light on the concept of fast fashion as well as the perils of copycat clothing.
The Good, The Bad and the Ugly of Fast Fashion
The concept of fast fashion is fairly straightforward: It’s a design, manufacturing and marketing method that focuses on rapidly producing (or reproducing) existing fashion trends and making them available to customers quickly and cheaply.
Examples of this can be found almost every time a dress or fashion accessory becomes popular, whether on social media or at various events. Within hours of it becoming popular, one can usually expect to see similar items on fast fashion sites, usually for a small fraction of the original price.
This has made fast fashion very popular among budget-conscious fashion lovers. It’s a way for them to own highly desirable styles at a fraction of the cost. This especially compelling since many of those styles will likely become unfashionable within a few weeks, months or years, limiting the product’s lifespan.
However, fast fashion has also been the source of great controversy. Most notably, they’ve been criticized for being environmentally unfriendly by creating disposable mass-produced fashion items and have faced allegations of using sweatshop labor to churn out products quickly and easily.
And then there is the issue of fast fashions copycat nature. Fast fashion, by design, aims to chase and replicate trends, not set new ones. Fast fashion tries to observe, replicate and market such trends, with the goal being to move fast enough it can capitalize on the trends that other brands start.
While this often takes the form of merely mimicking styles of clothes, as with Prado’s case, it often takes the form of copying specific designs from specific designers.
This has created a serious problem for many luxury designers. Though they are the ones that set the trends, they’re forced to compete with mass-produced knock offs that sell for a fraction of the price.
However, there is precious little that they can do about it.
Slow Fashion’s Copyright Problem
In the United States, fashion is considered a useful article that, by itself, cannot be protected by copyright. This means that the cut and shape of a particular item of clothing cannot be protected. Though copyright can apply to prints, images and other things placed onto the fabrics, that only applies if they would be equally protected on a piece of paper or a canvas.
Instead, fashion designers have relied heavily on trademarks to protect their work. This both includes traditional trademarks in their names and logos as well as trade dress, which can protect “The mental association by a substantial segment of consumers and potential consumers ‘between the alleged mark and a single source of the product.'”
In short, if a common look or feel is regularly associated with a particular brand, that may be protected as a trade dress if others attempt to simulate it without permission.
These three tools do give designers some legal weapons to fight back against fast fashion, and some have. In November 2019, Versace filed a lawsuit against fast fashion company Fashion Nova for violating its trademarks and copyrights. The two sides reached a settlement mere days before the trial was set to begin.
However, fast fashion designers are usually very careful to avoid these legal pitfalls. They are cautious to emulate, but not copy, any elements that can be copyright protected. They limit their copying to non-protectable elements and are cautious to not use logos, names or other trademarked components.
Their goal is to ride the trend, not create infringing works. However, that doesn’t stop cases like Prado’s where the copying is obvious and repeated. Instead, it simply limits the recourse those designers have in court.
That, in turn, is why fast fashion can be so similar to other designers’ works, become so popular and yet be so relatively free of litigation. The legal protection fashion gets is extremely limited, and fast fashion companies have gotten very good at approaching the line without crossing it.
Regardless of what one thinks of fast fashion, it’s most likely not a phenomenon that is going to go away. The lure of cheap, disposable, fashionable clothes is simply too alluring to many consumers. This is especially true in the age of the internet, where one can easily order whatever they desire from the privacy of their home.
This has left many designers clamoring for at least some protection of their work. However, while there have been several attempts to extend limited copyright protection to clothing articles in the U.S., none have passed.
This is why designers like Prado are using social tools, not legal ones, to combat fast fashion.
For designers, there are no easy answers. It ultimately comes down to consumers, and the popularity of fast fashion speaks for itself. Without a legal shift, it’s most likely designers like Prado will be dealing with inexpensive copycats for a long time to come.