Balenciaga Scandal Reveals Deeper Issues with Copying and Copyright Infringement
Tra My Nguyen, a graduate student and up-and-coming fashion designer, was shocked when she saw Balenciaga upload a photo of a motorbike draped in Balenciaga apparel.[1] Nguyen took to social media to explain that a Balenciaga recruiter saw her work at the Berlin University of the Arts and asked to see her portfolio twice.[2] Nguyen replied with images of her work, including her pictures of a motorbike draped in clothing, but was never asked for permission by Balenciaga to use those photos to replicate.[3]
Call-out culture has largely exposed brands that are doing this, which warrants the question of how creators can protect themselves? The answer is that there are not many avenues when it comes to the copying of their work. Intellectual property is broken down into three categories: copyright, trademark, and patents. In situations where a brand is copying another, copyright claims are often the most appropriate avenue as copyright protects original forms of work such as art, poetry, songs, and architecture.[4] This is different from trademarks, which protect words, phrases, or logos, and patents, which protects inventions or discoveries.[5]
Taking pictures and keeping sketches of the design is a way to show that the work existed prior to the infringement. However, pictures tend to be easier to protect because it is more tangible due to the separability requirement.[6] In Star Athletica v. Varsity Brands, the Supreme Court held that decorations on cheerleading uniforms are pictorial in that if separated from the uniforms, they would qualify as two-dimensional works of art.[7] While this may be an option to protect a designer’s image, it does not necessarily protect the work itself as the decision does not kill copycats.[8] Additionally, there are statutes that allow parties to file a motion to strike a complaint when the party believes a lawsuit has been filed to discourage free speech.[9]
California’s anti-Strategic Lawsuits Against Public Participation (“SLAPP”) statute was recently used by Khloe Kardashian and her Good American brand.[10] Involving one of Beyoncé’s favorite designers, dbleudazzled, the company accused Kardashian and her Good American brand of trade dress infringement, fraud, and unfair competition.[11] The Los Angeles-based designer claims Kardashian purchased and copied their signature catsuits, confusing the public and causing damage to dbleudazzled’s business.[12] Kardashian claims the two garments are different from one another, and that this is a smear campaign amounting to a frivolous lawsuit.[13] In using the SLAPP statute, Kardashian and Good American could effectively strike dbleudazzled’s complaint.
Even beyond fashion, copying is prevalent. In 2018 and 2019, Fortnite was hit with a series of lawsuits related to copied dances. Choreographic work can be copyrighted, but it comes down to the originality requirement.[14] This means that copyright can be denied for simple dance moves as there must be a higher level of sophistication involved.[15] Thus, some think these lawsuits are dead on arrival, even if ethically unjust.[16]
Ultimately, there are serious loopholes in intellectual property when it comes to the copying of certain types of work. This presents a major problem for smaller creators who may not have the resources to defend their creations. Although call-out culture helps hold those accountable who blatantly copy smaller creators, it may not simply be enough to protect certain works.
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