Designers Are Using Social Media to Fight Knockoffs
The fashion industry is inundated with allegations of copyright violations and copied designs, often occurring when a small designer or brand claims that a large retailer or brand copies its designs. Traditionally, disputes over copied designs have been resolved through the legal system. Increasingly, however, social media and in particular Instagram has become a popular medium for small designers to fight back against larger companies that they believe copied their designs. With the support of passionate followers, these designers take to Instagram to spot and shame duplicates quickly, frequently resulting in the alleged offenders ceasing sales of the design in question.
Instagram has emerged as a channel to fight back against duplicate for several reasons. As HBA lawyer and NYU fashion law professor Douglas Hand stated in the recent article Designers Take Copyright Infringement Into Their Own Hands in the Business of Fashion, “copyright protection for designs, even post Star Athletica [v. Varsity Brands], is relatively thin when compared to Europe and other jurisdictions.” Therefore, the U.S. legal system may be an insufficient means for designers to successfully protect their designs. Additionally, smaller brands and up-and-coming designers often have neither the financial resources nor the time to litigate. Litigation is also undesirable because these small brands and designers frequently just want the offending designs removed from market and do not want a prolonged court battle.
Despite Instagram’s utility in the fight against alleged copied designs, small brands and designers need to be careful about the potential for libel suits when they make public claims. Additionally, small designers may have, without realizing it, signed a “ghost design” or consulting agreement that grants a larger retailer rights to the small designers’ work. As a result, Hand recommends always seeking the advice of legal counsel prior to making any public claims. Apart from these risks, Hand believes that a public statement may still be a “channel for young designers to further protect themselves, and it is a more cost-effective channel than filing a lawsuit.”