The Repeat Offender

By Charles Hwang

Reviewed by Kyu Hee Chu

The ubiquitous Forever 21 has struck again. This time the brand has copied a unique textile print (called “Teepees”) owned by Alice Wu and Moriah Carlson, designers for Feral Childe. Unfortunately this was no accident. Forever 21 is well known throughout the industry for copying designs, motifs and entire dresses from prominent designers ranging from Diane von Furstenberg to Phillip Lim.

As discussed in detail by Professor Scafidi of Fordham Law School,[1] because items of clothing and their designs are currently not given any copyright protection, while prints and textiles are, there have been efforts on an industry and political level to change that. An example of this is a bill pushed by New York senator Chuck Schumer that would, among other things, grant designers copyright protection for their designs.

Despite the efforts by the Council of Fashion Designers of America (“CFDA”) and Senator Schumer, companies like Forever 21 continue to knock off designers. It’s become common practice and part of their business model. They find a design they like and infringe with the expectation of settling out of court. Meanwhile they increase their profile for their ability to churn out the looks of the season at affordable prices and make a hefty profit (Forever 21 is currently valued at $3 billion dollars).[2] However, according to Linda Chang, Forever 21’s Head of Marketing and daughter to founder Don Won Chang, they’ve “never settled…We’re not manufacturing goods ourselves….”[3] A plausible explanation for Ms. Chang’s response is that Forever 21 likely operates using many subsidiaries, which take the legal blame and brunt of any penalties for their corporate parent.

So we know why they do it and how they are able to say that Forever 21 itself has never settled (while deftly avoiding the question of legal troubles), but the real question is why is this behavior allowed to continue? Forever 21, being the corporate giant that it is,[4] probably wouldn’t settle unless they thought they were actually in the wrong. If settling a potential suit is viewed as an admission of guilt, shouldn’t companies like Forever 21 (who has been the offender in approximately fifty infringement suits[5]) be subject to more stringent penalties and regulations?

Though the nature of the industry may push fashion toward borrowing here and there, policymakers may consider the behavior of repeat offenders that warrant a three strike rule; in other words a penalty system, which would force treble penalties on repeat offenders. However, since very often companies settle for undisclosed amounts (and compulsory confidentiality agreements) it would be difficult if not impossible for this measure to have a strong impact.

Perhaps another more costly option would be to develop a self-regulating system of accountability like many professions. Mandating membership and licensing designers and corporations may reduce the amount of copying done by designers and corporations alike. However, the most glaring drawback is the stiffening of the fashion industry. Fashion, and high fashion in particular, is typically regarded as avant garde and fashion forward. A self-regulating system that would license designers, design houses and corporations may have a freezing effect on who can become a designer and as a result may negatively affect the creativity of fashion.

Regardless of whether the bill backed by Senator Schumer is passed, policymakers and the industry itself (even the most common offenders) must take careful consideration of how their actions will affect the future of fashion.

 


[1] How Forever 21 Keeps Getting Away With Designer Knockoffs, http://jezebel.com/5822762/how-forever-21-keeps-getting-away-with-designer-knockoffs, July 20, 2011, accessed July 26, 2011.

[2] The Gospel According to Forever 21, http://www.guardian.co.uk/lifeandstyle/2011/jul/17/forever-21-fast-fashion-america, July 17, 2011, accessed July 26, 2011.

[3] The Gospel According to Forever 21, http://www.guardian.co.uk/lifeandstyle/2011/jul/17/forever-21-fast-fashion-america, July 17, 2011, accessed July 26, 2011.

[4] Forever 21 Doesn’t Want To Be Made Fun Of, Sues Satire Blog, http://consumerist.com/2011/06/forever-21-doesnt-want-to-made-fun-of-sues-satire-blog.html, June 6, 2011, accessed July 26, 2011.

[5] How Forever 21 Keeps Getting Away With Designer Knockoffs, http://jezebel.com/5822762/how-forever-21-keeps-getting-away-with-designer-knockoffs, July 20, 2011, accessed July 26, 2011.


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