While it might be shocking to outsiders, many designers “design” by riffing off things that already exist, whether that’s drawing inspiration from creatives and collections from the past or putting their own spin on already popular styles. In extreme instances, this means copying a design from tip to tail. Young designers, without the financial or legal infrastructures to fight back, oftentimes see their original designs knocked off and plagiarised by much bigger brands.
According to Julie Zerbo, a lawyer and the founder of The Fashion Law, the issue of inspiration versus imitation has existed as long as fashion itself. “There needs to be some level of inspiration to enable fashion to exist and continue,” Zerbo says, especially given the cyclical nature of trends. “However, there is a line between inspiration and imitation depending on the type of law that we’re talking about. That line is judged in different ways and by different standards.”
Many claim that popular influencer Danielle Bernstein of WeWoreWhat has crossed the line in all ways and standards. In the last three years, she’s found herself in the centre of a storm of plagiarism accusations, accused of “closely emulating” the original designs of at least nine brands — many of which are small labels that include Second Wind, The Great Eros, and Grayscale — according to an investigation by Business Insider. (Other brands mentioned included Tiffany & Co., Live The Process, Cecilie Bahnsen, Dolce & Gabbana, and Are You Am I.) The report, which came out in January this year, included interviews with two past employees from Onia (a swimsuit brand that produces Bernstein’s WeWoreWhat line) and 26 “fashion insiders,” whose experiences with Bernstein were used to suggest a pattern of behaviour “that flouts industry norms against imitation and risks running afoul of copyright law,” according to Business Insider. One former Onia employee told the publication about a time when Bernstein brought in a floral swatch from Dolce & Gabbana and allegedly asked the employee, a designer, to “create something similar” for her line with the swimwear brand.
“The accusations that are being described by Business Insider, detailing ‘interviews’ that former or current Onia employees allegedly gave, are categorically false,” Onia responded in a statement to the publication, adding that neither Dolce & Gabbana nor Are You Am I, two brands that the employees mentioned in their interviews, made allegations against Bernstein themselves. “This article, designed to paint Onia and Danielle Bernstein in an abhorrent way, is antithetical to what Onia and WeWoreWhat stand for.” According to the statement, Onia conducted an internal review of materials brought up in the interviews and the other allegations mentioned in the article and found no evidence to support them.
Amid these allegations, Forbes reported in March that Bernstein would be parting ways with Macy’s and taking her namesake brand, previously exclusive to the department store, in-house. According to her response in Forbes, the move was of Bernstein’s own accord so she could have more “quality control” and “direct access to customers and customer service.” “My goal has always been to just create great work, have great working relationships with my team, and to give credit where credit is due.”
However, Grace Corby, the founder of Art Garments, sees things differently. “It was deflating,” says Corby of her experience with Bernstein. Last July, Bernstein posted that she was going to recreate a pair of “vintage” shorts for her WeWoreWhat line. Fans of Art Garments quickly pointed out that the design was actually the same as a made-to-order item that the Australian Etsy shop, which mostly sells vintage, carries. While Corby wasn’t aware of the influencer at the time, she looked into her receipts and found Bernstein’s name on one from 2019, for two pairs of the exact shorts she was accused of knocking off. “But there wasn’t much I could do,” Corby says.
As designers in similar situations have found out over the years, there is often little they can do to protect their designs from being replicated by others. According to law firm Morgan Lewis, “trade dress protection” is a tool that allows a company to keep third parties from using a design that could cause confusion in the marketplace, but the item must be “non-functional” in order to qualify. That means that a drawn design, print, or logo that’s distinctive to the brand is protected, but a pair of shorts is not. Similarly, copyrights — exclusive legal rights that grant the originator the power to decide who or what can recreate their copyrighted property — give designers legal protection against copycats only when it comes to design. Zerbo argues that existing copyright laws put fashion designers in a unique predicament: “Clothing is useful in nature, bags are useful in nature, shoes are useful in nature.” They, under the law, do not qualify for copyright protection.
Even when designs are protected, not every designer wants to pursue legal action because of the costly legal fees it requires to see things through. As such, many seek to resolve the issue without it. Following a callout by Diet Prada, Bernstein corrected her post, stating that her team ordered the shorts for her, so she didn’t realise they were original designs instead of vintage. For that reason, her version of them would no longer be manufactured, though Art Garments remains uncredited in the photo.
“There needs to be more respect and acknowledgment in the industry within smaller and more established designers.”
– Romeo Hunte, Designer
While Bernstein’s name has come up a lot in the past, many other brands, including established designer brands, have also been accused of plagiarism. In 2015, Chanel was accused of copying Scottish designer Mati Ventrillon after purchasing items from the brand for “research,” according to Vox. (The French house later agreed to credit Ventrillon as its inspiration in all press surrounding the collection.) In 2020, New York designer Romeo Hunte alleged that Burberry’s spring ‘21 collection included pieces copied from his spring ’20 collection, as well as his fall ‘20 collection, which were designed in partnership with Tommy Hilfiger. “When it was first brought to my attention, I was confused and disheartened by the blatant similarity between concepts,” Hunte tells Refinery29. “What really bothered me was seeing the hard work that went into my collection, all of which was produced with a very small team and knowing that I am not the only one who feels this way.” Burberry did not respond to Refinery29’s requests for comment.
Hunte says that there needs to be “more respect and acknowledgment in the industry within smaller and more established designers. We need to all be aware of the dedication and hard work that young, Black designers, especially, are doing.” He notes, too, that if brands are going to push the limits of inspiration, there should be compensation involved.
“I was aware that small brands often get knocked off. What surprised me was how tapped in these larger brands and corporations were at an early stage, and how quickly they pounce on trendy pieces by brands with little to no visibility.”
Kari Fry, founder of Subsurface
Such was the case of Kari Fry, the founder of clothing brand Subsurface, who, shortly after launch, found her signature cut-out silhouettes on the digital racks of an Instagram-friendly, trend-forward e-shop. “The first time I saw [the knock-offs], I was upset,” she tells Refinery29. According to her, one of the brands also used her exact imagery to sell their product. Fry asked the retailer to remove the product from its site, and it did. While she considers the incident resolved (and, as such, has chosen not to name the brands), the entire ordeal soured Fry’s perception of the industry: “I was aware that small brands often get knocked off. What surprised me was how tapped in these larger brands and corporations were at an early stage, and how quickly they pounce on trendy pieces by brands with little to no visibility.”
Designer K. Tyson Perez, the founder of Hardwear Style, a Black-owned luxury brand, believes acknowledgment is the first step to remedying a case of plagiarism. In December, shortly after Matthew Williams debuted his first collection for Givenchy, people began sending Perez screenshots of a photo posted by Williams. The selfie, which is still on Williams’ feed, shows the designer wearing a leather bucket hat with a zipper motif around it — a design that Perez says he’s been perfecting since 2013. “This reaches an extremely large market, and it swallows up any potential for my brand [to be considered] the original,” Perez tells Refinery29. “What I prided myself on was that I had never seen this [hat design] done before.”
Some told Perez that he should’ve protected himself, but, according to him, that’s not as easy as it sounds: “To actually create samples [is] not cheap. To get a pattern made [is] not cheap. [Designers] don’t want to think about all of the other logistics [and protections] which are important, but can also hinder your creativity,” he says. “If you’re so focused on that, then you’re not creative.”
Currently, his number one priority is to be acknowledged. “Give me my credit and apologise,” he says. “The rest we can figure out behind the scenes.” Perez’s attorney Jeff Gluck has been in touch with Givenchy, but thus far, the brand has not agreed that there are any similarities between Perez’s and Williams’ designs. Givenchy responded to Refinery29, stating that they were unable to comment at this time.
The accused can sometimes pursue litigation. In August, The Great Eros, a Brooklyn-based lingerie brand, accused Bernstein of copying a print from their packaging for her WeWoreWhat x Onia line (the lingerie brand had not sought copyright for the print prior to their accusation). According to Gluck, who is also representing The Great Eros, the brand found out about the alleged plagiarism when they started receiving messages from customers who recognised the similarity between their prints, which both featured line drawings of a body. “The Great Eros confronted Ms. Bernstein, hoping she would be cool, apologise, and make things right. Unfortunately, that was not the case,” Gluck tells Refinery29. According to Gluck, Bernstein ignored the messages and continued advertising products featuring the print.
Gluck says he then contacted Bernstein’s lawyers to settle the dispute without resorting to legal action, after which her team asked for additional time in order to speak with their client. Shortly thereafter, Bernstein’s team filed a lawsuit against The Great Eros on October 15.
Gluck sent WeWoreWhat a “Cease and Desist Notice” on behalf of The Great Eros on August 10 that called Bernstein’s print an “unauthorised reproduction of [The Great Eros’] famous artwork and trade dress,” claiming its use of the print was copyright infringement. In turn, Bernstein’s lawyers argued in the lawsuit that “no one, including [The Great Eros], owns the concept of silhouettes of the human form.” They then asked the court to declare that the WeWoreWhat design was not copyright infringement, does not constitute unfair competition, doesn’t entitle injunctive relief — when the court can force an entity to stop producing something — and can continue to be sold by WeWoreWhat. Her team also asked the court to award WeWoreWhat with attorney fees and other expenses from the lawsuit. In response, on November 10, the Great Eros filed its own lawsuit. To this day, the two parties remain in dueling lawsuits, but The Great Eros registered its print with the U.S. Copyright Office on October 13. A rep for Bernstein told Refinery29 that they were unable to comment on this timeline due to the ongoing litigation.
According to Zerbo, there isn’t a ton the law can do to protect designers. Receiving protection “requires designers to identify purely creative elements of a garment or a bag and only protect those things,” she explains. In addition to prints, creative elements could include a specific print or logo — sometimes it can be as simple as a colour, like in the case of Christian Louboutin’s red soles, which protects the shoe brand against other companies using the same shade for their soles. Clothes are, per law, “useful.” With that in mind, “an oversized jacket is not protectable,” according to her.
For this reason, she says fashion plagiarism doesn’t often lead to lawsuits. Instead, especially in the age of social media, smaller brands have taken to sharing their stories on Instagram and Twitter and reaching out to accounts like Diet Prada in an effort to set the record straight about who designed what first. “That approach is usually the result of one or two things, or both,” says Zerbo. “One, the brand doesn’t actually have a case that it can bring in court, and two, they don’t have the resources to bring a case in court.” According to her, this is when we see a “copy and callout.” “If designers had solid rights to pursue legal action, they would do so,” she says.
Without legal consequences, there’s not much use in distinguishing between imitation and inspiration. But public opinion doesn’t live by such strict definitions. As shown on watchdog accounts, people don’t like when a young, vulnerable designer is wronged, especially by an established brand.
After Second Wind’s Karen Perez noticed the similarities between her mask design and Bernstein’s, she initially kept it to herself, believing that no real action could be taken against a public figure as prominent as Bernstein (Second Wind has 63,200 followers; Berstein’s WeWoreWhat had 2.6 million). It wasn’t until another watchdog account, Influencers Truth, reached out to her for a comment that Perez decided to share her story. Following the backlash — that included a Diet Prada post and stories published by Refinery29, E! News, and Fashionista — Bernstein shared on Instagram stories that, while she believed the allegations against her were false, she’d come to the decision to donate all of the masks, as well as 5,000 additional surgical masks, to frontline workers. “I want to take all of the negativity surrounding these masks and do something positive with it. I will continue to show my support for small businesses and give back to great organisations,” she wrote.
And though it might be gratifying to small brands when the public stands in support of them, that alone won’t pay the bills. Because while a larger brand accused of copying might apologise or pull the products in question out of stores, according to Zerbo, it’s extremely rare that they’ll also provide any sort of compensation to remedy the situation. “You have to file a lawsuit for that to happen,” Zerbo says.
As for what designers can do to protect themselves, Zerbo says creating recognisable names and logos is key. “If you see a swoosh on a sneaker, that sneaker obviously came from Nike. A double C logo on a bag indicates that it came from Chanel,” Zerbo explains. Under trademark law, brand identifiers like these are protected and, therefore, can be used in court. Once you’ve decided on a logo, she suggests paying to protect that by licensing their product or filing a patent. (Following the controversy, Second Wind filed a patent for its mask design.)
In the months since the accusations, Second Wind’s Perez said the support she received against the copying was “immense,” with press, influencers, and even public figures like Rep. Alexandria Ocasio-Cortez and Jennifer Lopez promoting her brand during an extremely difficult time for retail. “This experience made [me] realise how much more conscious consumers are with how they spend their dollars,” she says. “Everyone wants to support a small business, and I am happy to be a part of that conversation.”
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