A lot of fashion seems to look the same; such is the nature of trends and functionality. Sometimes the similarities go much further. Fashion behemoth Zara (among others) is no stranger to accusations it copied other designers’ styles. The company is in that spotlight again: this time thanks to assertions that it blatantly ripped off several independent artists’ designs, without any acknowledgement of their work.
The case that has gotten the most publicity is that of Los Angeles-based illustrator Tuesday Bassen, though others have come forward citing similar suspicions of copying, including Stephanie Drabik of Toronto and Adam J. Kurtz of New York. Kurtz created shoparttheft.com to consolidate the comparisons of the artists’ work and Zara’s alleged copies. His site shows the artist’s designs and the Zara version, much as Bassen did in an Instagram post.
According to Bassen’s Instagram account, having been alerted to the similarities between her pieces and Zara’s, Bassen reached out to Zara’s parent company Inditex to seek compensation for the use of her designs. The retailer denied that there had been any copying and stated that her worked lacked the distinctiveness sufficient to be associated with her, noting that their websites’ traffic was very large and that Bassen was an independent artist who few would recognize. As Bassen told New York Magazine, she is taking legal action against Zara, and is willing to go to trial if necessary. Nevertheless, she acknowledges that for an independent artist to take on a retailer of that size, the costs alone can be prohibitive, regardless of the legal merit of the case.
But what of the legal merit? Any claim made by Bassen and other artists will rely on their work having copyright and on Zara having infringed on its rights by copying a substantial part of their work. They will also have to overcome possible objections, including Zara’s assertion of indistinctiveness and lack of recognition (though the latter as we will see is fairly irrelevant).
Based on the company’s response, as posted on Bassen’s Instagram, Zara does not appear to fully acknowledge the copyright issue in its exchange with Bassen. Indeed, it seems to associate distinctiveness and recognisability with ownership rather than delving into what actually has copyright. Assuming Bassen’s and other artists’ works are not themselves copied, they certainly look like they are artistic works created with a degree of skill and judgement (the Canadian originality standard). Assuming this is the case, their fame has nothing to do with their copyrightability. A second issue is whether Zara infringed copyright by copying a substantial part of the works. A cursory glance of some of the comparisons demonstrates at least some level literal copying and thus prima facie infringement.
The analysis cannot stop there. The case is very much being tried in the court of public opinion and conclusions are being drawn based solely on the similarities between the artists’ and Zara’s pieces. This ignores the complexities of copyright.
Zara’s arguments (at least as presented thus far) are not helpful in coming to a legal conclusion, though the distinctiveness issue must be considered. As The Fashion Law blog points out, whether the public can associate the works with the artist is a matter of trademark law, not copyright law. Zara cannot make use of the argument that people do not know who Bassen is, and to make such an argument is disingenuous. The tactic seems to be more one of discouraging legal action than one of proper legal argument.
Here, however, the artists are not seeking a monopoly over a simple image or common artistic element. At least some of the artists’ designs are intricate and by and large do not represent the only way to portray something. Furthermore, where the designs also contain phrases and other added characteristics (such as Bassen’s eraser with “Erase You”), it is even more difficult to suggest that you were merely employing a common image. For example, the silhouette of palm trees might be common stock, but the same silhouette with “Beach Please” superimposed is considerably more original. In order to succeed on these grounds, Zara would have to show that giving the works copyright would monopolize the depiction of certain subject matter. Looking at Crywolf’s cloud pin for instance, though, it is easy to imagine many other ways in which Zara could have chosen to depict their version.
Where Zara does appear to make a valid copyright argument is in charging indistinctiveness. Firstly, if there is insufficient originality in the pieces, there is no copyright to begin with. Alternatively, if the works are such that the idea they express (say, a cloud pin) can only be expressed in one or a small number of ways, the merger doctrine can prevent the article from gaining copyright protection. In Herbert Rosenthal Jewelry Corp v. Kalpakian, it was held that a jeweled bee pin could only be bejeweled in so many ways, and so it would not have copyright. The idea of course is that an artist cannot have an unfair monopoly over pins that look like bees. Zara is certainly not prevented from selling a pin shaped like a cloud.
An interesting question remains open as well: whether jewelry is a useful article. This is important because, per s. 64 of the Copyright Act, the aesthetic features of the design (or the visual configuration) of a useful article (“an article that has a utilitarian function”) is not protected where the article is produced in a quantity of more than 50. Therefore, if Bassen’s pins were produced in such a quantity, and they are found to be a useful article, the only protection would come from registration under the Industrial Design Act.
In the most recent decision in Canada, Pyrrha Design Inc. v. 23735 Saskatchewan Ltd., the motions judge found jewelry to be “clearly” a useful article in deciding if there was a genuine issue to be tried. However, the Federal Court of Appeal found that determination not to be correct in law and ordered that the case proceed to trial for adjudication on the merits. The case was later settled, so there has been no judicial determination as yet as to whether jewelry would fall under the Industrial Design Act. While it is clear that articles to be worn are useful, policy must prevent such an argument being used to appropriate artists’ creativity merely because their medium happens to be “useful” in some ways. While basic clothing certainly serves a utilitarian function, it would not make sense to extend that definition to almost exclusively artistic wearables like jewelry (admittedly, items like watches present more of a definitional challenge). To do so would undervalue the artistic value of artists who work in wearable mediums compared to those who, say, paint on canvas.
It is not uncommon for companies like Zara and Forever 21 to face allegations of copying. In 2011, it was estimated that Forever 21 had been sued more than 50 times for stealing and passing off other artists’ work (many were much more famous than small independent artists, such as Diane von Furstenberg). It had lost none of those cases. Given the financial resources of companies like these, it is easier for them to settle out of court, which often means they do not have to admit guilt. Combined with the complexities of applying copyright (or any other intellectual property laws) to fashion, it is not surprising that rip-offs by big retailers exist.
Whether a case like this goes to trial is hard to predict, though the imbalance in financial resources means going to court would be very burdensome for the plaintiffs. Were it to get that far, however, Zara would be hard-pressed to show that it did not copy some of its designs from independent artists. Being faced with having to make actual legal arguments, a copyright analysis demonstrates that Zara would find it challenging to assert the absence of copyright in the original works or the applicability of the merger doctrine (or, for that matter, that trade-mark principles apply to a copyright case).
 Pyrrha Design Inc v 623735 Saskatchewan Ltd (cob SpareParts), 2004 FCA 423,  FCJ No 2084.