Forever 21 Gets Sued For Copying — Again

Forever 21 is being sued for copyright infringement by an up-and-coming designer — again. The folks behind a line called Feral Childe allege that the California-based creepy-Christian sweatshop emporium copied one of their textile prints. This is noteworthy because while under current law garments themselves — as in patterns, “cut,” construction elements, and everything else that makes a dress unique — are not copyrightable intellectual property, graphic elements that might be featured on garments — as in prints — are. Forever 21 has been sued for copying more than 50 times by designers including Anna Sui and Diane von Furstenberg; the company has always settled out of court. One trade dress infringement claim by the now-defunct label Trovata resulted in a lengthy trial, during which the court was treated to the spectacle of Forever 21 co-founder and creative director Jin Sook Chang claiming ignorance of her company’s ownership structure, of who her company’s other executives are, and even of her company annual sales. Trovata later settled out of court. Feral Childe’s textile design is shown at top; Forever 21’s is below. [The Cut]
Feral Childe‘s designers Alice Wu and Moriah Carlson say their textile design, called “Teepees,” is registered with the U.S. Copyright Office. Wu says it took her and Carlson “several months” to develop the print, “starting from sketchbook drawings and then refined and edited in countless email exchanges between us until we perfected the image. This type of markmaking reflects the very particular philosophy of drawing taught at the New York Studio School, where both of us studied…We have made the image very personal and particular to Feral Childe. There are hidden pictures of teepees and crowns and pennants in the drawing that aren’t necessarily apparent at first glance. How could anyone else come up with that combination?” She continues, “Whoever at Forever 21 discovered our print and decided to co-opt it wasn’t looking closely and probably just assumed this was just an abstract ‘scratch print’ and didn’t notice our hidden pictures.” [EcoSalon]
Meanwhile, this morning Lazaro Hernandez of Proenza Schouler, a Harvard law professor, and a spokesperson for the American Apparel & Footwear Association, an industry lobbying group, testified before Congress in support of the proposed Innovative Design Protection and Piracy Act. The IDPPA would extend limited copyright protection to clothing itself when a designer’s work was deliberately copied by someone who had access to or was aware of the original, resulting in a copy that is “substantially identical” to the original. Council of Fashion Designers of America president Steven Kolb says the proposed law, which was developed with Senator Chuck Schumer, is necessary “because we see the vulnerability of designers, particularly young designers and small business owners and the consequences of their ideas, intellectual property and creativity being taken from them and how it impacts their ability to manufacture their collections and grow their businesses.” Indeed, behemoths like Forever 21 have a preference for copying the work of younger and less-established designers, because they are less likely to be protected by a phalanx of scary litigators, like, say, Louis Vuitton and Chanel are. [WWD]
You can read Hernandez‘ congressional testimony along with all the witnesses’ testimony here. [LexisNexis]