When a Los Angeles jury awarded the estate for Marvin Gaye $7.3 million USD for what they deemed a similarity between the late singer’s “Got To Give it Up” and “Blurred Lines” – the mega-hit for Pharrell Williams, Robin Thicke and T.I. – many were left to wonder if justice has been served or if a new legal model had been put in place. While we’ve already touched on what it means for the music industry, our attention now focuses to the world of fashion where “fair use” is very much still in play.
As part 1 of our investigation surrounding copyright law in the United States discovered, artists who sample other artists without acknowledging that they’ve done so have little legal options because the smoking gun is literally in the audio files. For those who have been influenced by something from the past – noted by Pharrell Williams and Robin Thicke as the “groove,” – artists up until that point were often protected under the “fair use” umbrella. With a new legal precedent set thanks to a multimillion dollar decree by a Los Angeles jury, one can only expect that more and more people – from a variety of different creative mediums – will begin using the court system to copyright and/or protect ideas that to this point were not able to be deemed “unique.” While “Blurred Lines” has come and gone as nightclub white noise, the audio shock wave could potentially blow up the world of fashion.
Graphics and logos are to fashion what sampling is to the music world. Since logos are often the one identifying mark a brand has to set itself apart from the competition, those that blatantly reproduce those items often fall into the schlocky connotation of being a “counterfeiter.” Kal Raustiala, co-author of the book The Knockoff Economy: How Imitation Sparks Innovation, argued the merits of knockoffs while speaking with NPR. “The first is that fashion relies on trends, and trends rely on copying.,” Raustial says. “So you can think of copying as a turbocharger that spins the fashion cycle faster, so things come into fashion faster, they go out of fashion faster, and that makes fashion designers want to come up with something new because we want something new. We’re sick of what’s out there. The second is that copying helps condense the market into something that consumers can understand, so people want to follow trends, they want to be able to dress in a way that’s in style; they have to understand that. There are designers that get hurt by knockoffs. And we’re very sympathetic to that. But when we think about what our law should permit, we need to think about the big picture: What’s going to grow this industry and make it successful, create jobs, create a robust sector. And in doing that, I think it’s clear that the American approach is to allow copying in the apparel industry.”
Many brands hide their subtle homages in favor of parody – perhaps thinking, “If we’re blatant about it, no one can possibly think we’ve stolen their idea.” It’s as if being so on the nose is actually a weapon against charges of plagiarism. That might sound backwards, but “parody” continues to be an artist’s most vital tool because in almost every case, it leaves the secondary party protected.
According to the Lanham Act – the primary law that governs the protection of trademarks in the U.S. – the test for infringement is whether the secondary market “is likely to cause confusion, or to cause mistake, or to deceive” consumers in connection with the original trademark owner. In order for a parody to hold up in court, it must avoid any likelihood of confusion that may indicate that the parody is an extension of the original brand. Consider such products in the past as the Supreme Atelier Hoodie with Hermès roots, Michael Agwunobi “That Shirt Cray” T-shirt which parodied COMME des GARCONS PLAY, Undercoverism Printed Wallets which took from Goyard, and SSUR’s Comme des Fuckdown line as parodies that have worked in a legal sense. If Robin Thicke and Pharrell Williams were indeed “channeling the groove” of Marvin Gaye’s “Got To Give it Up,” they could have potentially reaped all the benefits had they listed it as a parody of the song rather than an original. In many cases, ego is perhaps the most dangerous item in an artist’s bag of tricks.
Look no further than the “jogger pant phenomenon” of the last few years as a perfect example of when infringement can be hard to prove in a court of law. Credited to Publish Brand, owner and creative director, Michael Huynh, said of the origins of the silhouette, “Alex James, a culture-savvy and long time friend of mine had came to down to visit my office/studio to chop up design and what was going to be included in our first collection. Him and I talk culture a lot and so we bounce around ideas all the time. That day Alex James had worn a really dope pair of sweat pants – I believe they were by Marc Jacobs – and he was like, ‘Mike, you gotta do a silhouette like this!'” Huynh continued, “So we redesigned that Marc Jacobs pair of pants in a fleece material. It was like a comfortable, brushed fleece material. Little did we know what was going to happen, catapulted our brand completely… in ways we did not imagine.”
While numerous brands entered the jogger pant’s fray after the explosion, it seems almost ironic that the original origins had “inspirations” from another brand given the ruling surrounding “Blurred Lines.” Many feel that because Thicke and Williams were on record as saying they were influenced by Gaye’s music while in the studio, they had actually set the stage for a legal battle.
When it comes to “silhouettes,” it’s almost an impossible task to secure a copyright. The court system literally strips away all considerations for “style” because at its core, clothing provides a basic, everyday necessity for the wearer: stay warm, stay dry, etc.
According to Forbes, “The one exception under the U.S. Copyright Act is that a fashion design may be protectable ‘only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.’ Courts have established that the test for separability may be met by showing either physical or conceptual separability. A design element is considered physically separable when it can be removed from an article of apparel and sold separately (e.g., a belt buckle), and conceptually separable when it comprises artistic features that do not contribute to the utilitarian aspect of the apparel.”
While the old euphemism “imitation is the sincerest form of flattery” exists to put a tidy little bow on honoring past traditions, in fashion, it’s also a license to steal. Since the courts only see pants as pants, designers wanting to protect their specific creations would be forced to add embellishments and flourishes seen as “add-ons” in the court’s eyes. Consider Abercrombie & Fitch’s “zip off cargo pants” from he late ’90s/early 2000’s. Surely those would be deemed unique, right? Wrong. Even the addition of zippers at the knee and the transformative property of going from pants to shorts left plenty of other brands entering the “hybrid” marketplace.
“Blurred Lines” could potentially be a devastating blow to the fashion world because designers operate in a similar space as musicians do. By attempting to push their mediums forward, both inevitably look to what is around them – both past and present – as a barometer for what could be successful. Call it “theft,” or call it an “homage,” but “Blurred Lines” is not a new phenomenon – it’s a new judgement. Since a jury was allowed to determine that two songs sounded alike despite being definitively different in their melodic and harmonic structures, expect further litigation where the courts must decide if two things look alike or if a parody isn’t quite over the top enough. It seems that good artists don’t just copy, and great artists don’t only steal; they litigate as well.