Forever 21 “Woman”fashion faux pas

If you’ve been following my blog for a while, you would know that I’ve discussed the difficulty in copyrighting clothing designs. Clothing was once considered a useful piece thus it once met patentable standards. But that was so long ago that generally articles of clothing have entered into the public domain. Most patterns or certain ways to wear one’s clothing are also in the public domain. So most fashion design companies can only copyright or claim intellectual property protection in designs that meet specific copyright standards which is often subjective. For example, the US Supreme Court upheld a ruling that cheerleading uniform designs were copyrightable where the design was separable from the product’s utilitarian aspects. The earlier federal appeals court determined that the cheerleading uniform company’s designs were conceptually separate from the uniforms. Congress has steadily declined to provide broader copyright protection to the fashion industry and while this case has provided a small way for designers to their ornamental designs, most clothing designs will automatically be considered part of the public domain outside trademarking the company name. For example many cartoon and book characters meet copyright standards outside of the article of clothing so they are protectable on their own. Secondly those characters can serve as trademarks for their companies. Prime examples include Mickey Mouse, Hello Kitty, Spongebob Squarepants, just to name a few. Often clothing designers of today feature clever slogans or phrases on shirts or statement shirts.

But often those designs are not copyrightable. Fashion is one of those areas where “copying” is for the most part legal or not illegal though most people have morally based reactions to copying. Louboutin is a very expensive shoe brand and often other less expensive shoe designers copy them creating a similar design and it’s perfectly legal. The thorn in every designer’s side, Forever 21 is presently involved in a trademark lawsuit against luxury brand, Gucci, to cancel its trademark on its well-known color block stripe of blue, red and green. While scrolling through my Twitter timeline, I stumbled across a series of tweets accusing Forever 21 of copyright infringement for copying another clothing designer, called the Word Agency. The designer created a basic statement t-shirt featuring the word “Woman” in different languages centered all the way to the bottom of the shirt. The shirt was created as part of a charity campaign for Planned Parenthood but it’s unclear whether Planned parenthood actually commissioned the project. Of course other Tweeters were upset and believed that what Forever21 had done was in fact morally and legally wrong. but again based upon the analysis the courts have determined, it is my legal opinion that Forever 21 is in the legal clear though not the moral one. Forever21 is known for its fast fashions including copying bigger brands with cheaper alternatives. Forever21 has since removed the shirt though for legal grounds. One Tweeter even noted that the designer’s t-shirt concept was not new and there were similar t-shirts featured on Etsy. I haven’t located a similar design yet but will update if I do. Etsy even details the policy on certain t-shirt designs “Copyright does not protect titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, coloring, or mere listings of ingredients or contents. Copyright does not protect the mechanical or utilitarian aspects of a design.”

Noting Etsy’s research on the issue, it would appear that the designer’s statement is in fact a slogan or short phrase that does not meet copyrightable standards and would likely have a difficult time meeting trademark standards as well under a concept called ornamental refusal. More on that later. As a lawyer, I often have to sift through emotions to get to the facts and the law. I wanted to be upset with Forever21 as well but in this case, it does not appear that they done anything outside of the bounds of the law. Agree or disagree? Let me know your thoughts

EJLee Law is a boutique law practice specializing in Entertainment, IP-Copyright and trademark, and Small Biz matters located in Metro Atlanta. You can follow EJLee Law on Twitter @ejleelaw or FB EJLEE LAW PRACTICE LLC


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