In the world of fashion, imitation and plagiarism are commonplace, and these days, the line between what counts as “inspiration” has been blurred significantly. It’s perfectly normal to see brands ripping off each other or borrowing features off other fashion designers at the slightest chance. This has been fashion’s practice for many years, and it’s important to note that this has been fostered by the entire fashion industry’s reliance on the consumers fascination with viral trends.
Famously, in fashion’s past, the legendary Harlem-based tailor, Dapper Dan made his mark in the 1980s by creating custom pieces for rappers and athletes. Known widely as the “king of knock-offs”, the couturier transposed the monograms of Gucci, Louis Vuitton, MCM, and Fendi onto premium leathers to create coveted fashion items that were worn mostly by the Black community at a time when many high-end designer brands were overlooking them.
At first, the fashion industry’s response to his work was hostile, and Dapper Dan dealt with a myriad of lawsuits, and raids over the years. But eventually, years after facing legal charges for his branded wears, these same designer brands would go on to take inspiration from his knock-off days, and have even collaborated with Dapper Dan. This begged the questions about where the line has to be drawn between taking inspiration from something and downright copying it.
The relationship between imitation and theft has been rather tenuous and the law around it even more ambiguous, resulting in a dearth of reliable protections for smaller brands. Big fashion brands have done so to other big brands and even smaller fashion brands, and in the past, we have seen many examples of brands coming under fire in the court of public opinion for copying. However, the most prolific offenders are fast-fashion companies which exist to bring high-end fashion that’s usually inaccessible to a mass audience, a great reason for their increased popularity today. Many of these brands cater to the Instagram and TikTok generation, whose preferences are instant gratification, and as a result want immediate access to what their favourite celebrity or influencer wore. This has now led to brands such as Boohoo becoming the UK’s fastest-growing retailer since its inception in 2006, with reportedly higher value than both Marks & Spencer and Asos. Knowing how affluent these fashion companies and their CEOs are today, it’s quite shocking how they continue to profit off the backs of small fashion brands that don’t have the capital they do.
Another important issue is that many shoppers don’t seem to care about where they buy their clothing. One of the reasons this keeps happening is because consumers are happy to buy these dupes given their extremely low prices, and the bad press gained from copying designs does little to outweigh the increased demand from consumers and the potential profits. For years, fast-fashion brands could get away with undercharging for their cheaply-produced dupes, imitating and taking ‘inspiration’ from a range of high-fashion and burgeoning independent brands and evading liability where necessary. Social media, however, has been a key factor in highlighting these egregious business practices. A very popular case was the Tuesday Bassen v Zara case. In 2016, Zara was called out for copying pins from LA-based illustrator, Tuesday Bassen, on their designs. She had initially attempted to get Zara to discontinue their use of her artwork through a cease and desist letter, which went ignored by the fashion behemoth. She then took to social media to highlight the infringement and eventually, with some thanks to the backlash they received, Zara had no choice but to discontinue the pieces and take them off their racks.
As fashion production increases and continues to move at such a fast pace, even during a global pandemic, where the pace of the world has slowed down a lot, there is an urgency to look into the factors that enable this. Recently, Kai Collective, a womenswear brand owned by Nigerian designer Fisayo Longe had her brand’s most prominent design stolen by a fast-fashion company. This is happening at a time when Kai Collective is experiencing its golden moment, having been worn by everyone from Saweetie to Jackie Aina. It was also among a range of small brands that had found itself swept up due to changing consumer behaviour patterns in the last year. The pandemic has inadvertently affected the ways in which we engage with fashion, as many in-store businesses have been disrupted, with a shift in paradigm towards e-commerce and online shopping channels. As the world has become a global village, it has never been easier to connect with people all over the world. This has then placed more emphasis on community, which often comes with trust from fostering a unique connection in a time that has been defined by isolation and socio-political change.
2020 was heralded as the year that the ultimate luxury fashion item had become human connection. At the same time, a gamut of small brands found favour in the communities they had begun to build online, relying on the power of social media to market their product directly to consumers. There was a massive uptick in interest in social media challenges on TikTok and Twitter, with people donning beautiful outfits and others, a glamorous face beat as they showed off their favourite quarantine looks. It improved consumer sales for small Black-owned businesses such as Telfar, Kai Collective, Hanifa, and more, who gained the attention of black communities all over the world, due to their unique, ground-breaking feats. At every point during the pandemic, one of these brands gained and kept the attention of the world, thanks to a trend they had set with their creations. Congolese fashion designer Anifa Mveumbu set herself at the forefront of the fashion game with her hauntingly beautiful 3-D fashion show, an innovative user experience for the times we are in. Fisayo Longe created her magnum opus in the vibrant mesh Gaia dress which has now grown into a two-piece, a scarf, and a mini dress set that have now won over the hearts of many millennial women. As fast as fashion goes, this attention didn’t come without downsides for both brands, as their unique designs come with a host of knock-offs in their wake.
These brands became the go-to, particularly during the summer, after the protests throughout the U.S. and across the world forced consumers to look inwards about who they were giving their money to. From Anifa and Kai Collective to Telfar and Pyer Moss, the attraction of these brands was in their values, which placed emphasis on racial and gender inclusivity, representation, and a deep sense of community, therefore it strikes a nerve when bigger brands who have more means, profit off their hard work.
Kai Collective is fighting back.
About a month ago, Fisayo Longe, Founder and Creative Director of Kai Collective took to social media to air how unfair it is that fast-fashion companies get to steal and profit off the hard work of smaller brands — especially in the middle of a global pandemic which has thrown many things off their normal course. In a now-deleted Instagram post, Longe explains how the distinct print of last summer’s hot button fashion item, The Gaia, had been copied by the fast-fashion company, Boohoo, which is owned by British billionaire, Mahmud Kamani. The company has now become a conglomerate that includes Prettylittlething, Nasty Gal, Coast, Karen Millen, and more recently, Debenhams. Boohoo Group Plc profited over £600,000 in revenue 2020, with some of it at the expense of ripping off smaller brands.
According to Longe’s post, the Gaia print, which was exclusively created for KAI by Grapes Pattern Bank, had been copyrighted in the UK and EU, with an additional copyright application currently ongoing in the United States. As it stands, KAI Collective and Boohoo have now entered discussions and negotiations, with Fisayo Longe’s dispute stating that the fast-fashion company must cease and desist from using the Gaia print.
KAI Collective taking Boohoo to task challenges the status quo but shows the dark underbelly of fashion laws, and how much room there is for unethical practices. Speaking on this, Fashion Consultant and Intellectual Property lawyer, Kike Ojewale confirms that: “There are still gaps within the various forms of intellectual property protection, and as such fashion designers are not offered adequate legal protection for their designs,”. In the ever-evolving fashion industry, creative expression must be protected through intellectual property (IP) rights which are put in place to protect the “creation of minds” including aspects of design, logos, and more. However, Ojewale adds that “these rights are pointless if they are not enforced, and enforcement is expensive for any brand, let alone small brands”.
In the UK, where KAI Collective operates, copyright and design protections fall under the Copyright, Designs, and Patents Act 1998 (“CDPA”). To comply, designer’s work must fall under one of the categories listed in section 3, and one which is ‘artistic works’ is defined as “a graphic work, photograph, sculpture, or collage, irrespective of artistic quality, a work of architecture being a building or a model for a building or works of artistic craftsmanship”. The catch, however, is that such a creation must not be intended to be used as a model or pattern to be multiplied by any industrial process. Kike breaks this down for me, explaining that “essentially, [this provision] means that such designs cannot be mass-produced, which of course, is not the desired intention for any fashion designer”. This means that these copyrights are only able to protect sketches and prints and such alike, rather than to the entire design. These are the loopholes in the law that allows fast-fashion companies to find ways to take large chunks of ‘inspiration’ from smaller unprotected brands. Fisayo adds that she “honestly didn’t realise that Gaia was going to be so heavily imitated. [She] just didn’t see Kai being at that level where so many people would steal or imitate the work.”
The uniqueness of Longe’s case is that the Gaia print is too distinct and original, given how unique to the brand. Exclusively sourced by Grapes Pattern Bank, a print company based in Lagos, Nigeria, the dress which became the trend of Summer ‘20 had propelled the designer into the limelight and spawned countless knock-offs on its way to every girl’s wish list. Fisayo herself recognised this instantly and began two Instagram hashtags #GaiaAtHome and #GirlsInGaia, which were set up not only to encourage her growing community to take pictures in their colourful Gaia numbers but also to raise money towards the sex and gender-based violence back home in Nigeria during the month of June.
In response to KAI’s lawsuit, the brand’s intimate community of black women responded by amplifying her message, Which Longe is thankful for, as she tells me: “I think it gives me an advantage in the court of public opinion. Because, it’s like, this is my print!” Longe recounts that she had seen several dupes for months after Gaia’s release last year, but they were beyond her sphere of control, as the source was not always clear, however, Boohoo’s was the closest dupe she had seen in the UK, she tells me of the Manchester-based franchise. The specifics of Kai Collective’s case are also vastly different. Longe started production on her distinctive ‘Gaia’ prints with the intention of building a strong brand identity, which means that her protection extends beyond sketches and thus, falls outside the CPDA as the designer can rely also on Section 7 of the Registered Designs Act 1949.
This provision states that KAI Collective is entitled to the exclusive right in the copyright design to “make or import for sale or for use for the purposes of any trade or business, or to sell, hire or offer for sale or hire, any article in respect of which the design is registered, being an article to which the registered design or a design not substantially different from the registered design has been applied, and to make anything for enabling any such article to be made as aforesaid”. Kike breaks this down explaining that this Act provides that, “designers can rely on design protection which allows them the right to protect a combination of lines and colours or any three-dimensional form with or without colours is recognized as an industrial design or a design”. This means that the items released by Boohoo in January 2021, months after Gaia’s release in June 2020 would fall within this provision.
“In this case, KAI Collective has a registered design right over the ‘Gaia’ Print; this affords them the protection against infringers. Without registration, the protection of such rights against infringers is a lot more difficult to prove in court,” Kike continues. Based on the laws mentioned, Kike strongly believes that Kai Collective could stand a chance against the fast-fashion giant Boohoo Plc., although she states that the burden of interest would now fall onto Boohoo to show that no infringement of copyright has occurred, which she admits will be difficult for them.
Longe, on the other hand, has rarely had any legal experience on this scale until now. “I really really want small businesses to know that we have rights, because right now it feels like we don’t. I want them to know that depending on the design, it might be worth spending on protecting it,” she tells me, explaining her motivation for fighting back against this case of infringement. However, with both sides currently in discussions, and Longe’s promises of updates of the case progress, the designer is certain that the court of public opinion will be on her side and stresses the importance of small brands doing their best to differentiate themselves and build a great original product that has soul.
“The thing about it is that a company like Boohoo can replicate the print but never my brand’s energy and identity”.
The case against fast-fashion
It’s not just that fast-fashion brands have the capital to hire people to design their own unique clothes rather than ripping off other fashion designers, it’s that there’s a dark underbelly that has gone ignored for too long. Established fast-fashion retailers like Boohoo, Zara, H&M and more, tend to outsource their means of production and their raw materials from developing markets to reduce the cost of production. Alongside this, they exploit garment workers in these countries, underpaying them for their services whilst making a sizeable profit from their hard work. Many fast-fashion retailers came under increasing public pressure to investigate and invest in their production process and employment practices after the notable Rana Plaza factory collapse shook Bangladesh in 2013.
However, nothing seems to have changed. Just a few months ago, it was revealed that Boohoo garment workers in Leicester, United Kingdom, were making clothes and being paid as little as £3.50 per hour despite the company churning out 100 new styles on a daily basis. Not to mention, just this week alone, US-based campaign group Liberty claimed Boohoo is not doing enough to stop forced labour in the Leicester factories. This is not surprising seeing as the Boohoo website details that the company’s principles have not changed since its inception in 2006, with their vision strategy stating that they work ‘through a test and repeat model that brings the latest trends and fashion inspiration in a matter of weeks to our customers across the world’. It’s clear that this is a company unwilling to pay attention to how its unethical practices affect marginalised workers, and these instances only shed a sliver of light on the ugly underbelly of the workings of these fast fashion companies.
Brands such as Boohoo are constantly at the receiving end of these allegations of theft, subpar working conditions, and grossly-imbalanced payment structures for workers, that it now raises the important question about how fast is “too fast” when it comes to fast-fashion, and how much leeway is to be given to brands who source ‘inspiration’ from pre-existing brands and designs? Imitation is said to be the greatest source of fashion inspiration but where do we draw the line when protecting smaller-owned businesses, because right now that line is barely there, thus making the calls to rewire the fashion system even more urgent.
Kal Raustiala, author of ‘The Knockoff Economy: How Imitation Sparks Innovation’, once told NPR that “regardless of the effects on the industry overall, it’s good for consumers in the sense that copying breeds competition. When you have copies, it means you have multiple things competing in the marketplace that are similar. And if they compete on price, then consumers have an option that they wouldn’t otherwise have.” But his statement not only fails to take in how imbalanced the fashion industry is for Black designers, especially one owned by a second-generation Nigerian woman who spent time building her company brick-by-brick. Her distinct Gaia print that has now been worn by celebrities like Saweetie and Tiwa Savage, and spotlighted by Beyonce, shows that she’s doing something right. With this imitation, Boohoo is grossly undervaluing KAI’s work, as one of their dupe Gaia dresses retail at 85% less than the original price on KAI Collective’s website. This just goes to show popular fast-fashion brands destabilise the income of emerging designers by selling at eye-catching prices. Relying on the Gaia print which is familiar to a whole audience of consumers, Boohoo is unreservedly appropriating one of KAI Collective’s hallmark designs, and relying on the fact that consumers will purchase the product for its likeness, which should be unacceptable.
With fashion law being a fairly untapped area of law, there isn’t a huge amount of past cases to rely on, and Ojewale explains that the lack of such precedents and case law does little to encourage other small-end designers who seek protection against infringement, also making it even more difficult for legal practitioners to have access to these issues and gain insight on how to adequately advise their clients. But no matter which way you look at it or which terminology you employ, taking something that belongs to someone else is wrong, and passing it off as your own product and then undercharging for it is even worse, and it’s high time such things were called out and interrogated. Going forward, the fashion industry and legislation must catch up to the changing world of fashion and design but alongside this, we, as consumers, must first re-evaluate our relationship with fast fashion and find newer ways in our daily lives to make use of sustainable fashion if we are to ever have any meaningful discussions about protecting small brands, especially those owned by Black women.
UPDATE
28/01/22
Kai Collective and Boohoo have now reached a settlement in the legal action filed against the fast-fashion brand. According to Kai Collective founder, Fisayo Longe, the items have now been removed from the Boohoo website and are discontinued from sale.
To find out more on how to shop sustainable, you can start here.
Featured image credits/FisayoLonge
Doing what I can for the culture @tamimak_
