Christian Louboutin shoes are known for their signature lacquered red soles, but lost in court for the right to patent it.
In 2002, Halle Berry appeared on the red carpet of the 74th Annual Academy Awards in a sweeping gown with a peek-a-boo burgundy skirt and netted top with appliquéd flowers that appeared as though they were tattooed to her body. The dress catapulted both the wearer and its designer, Ellie Saab, into fashion idolatry. Years later, there are still countless mass-produced replicas of the one-of-a-kind dress, sans the couture tailoring, design, fabric and — most significantly — price tag of the original.
When it comes to Oscars fashion, “borrowing” from a couture gown is not only expected but often welcomed, pushing the design into an iconic role. Oscar gowns translate into hundreds of thousands of dollars in sales and priceless exposure for not only the fashion houses that created them, but also companies that specifically produce lookalikes.
One such company is Faviana, whose rhinestone-studded cocktail dresses and jewel-toned evening gowns are now endorsed by Pretty Little Liars star Ashley Benson, who is the new face of the company. A Faviana spokesperson explained that the company’s designers begin sketching ideas as the Oscars air on live television. Faviana’s dresses are then produced within two days, and become available to over 500 retailers nationwide after four to six weeks.
The task of facilitating the selection, fitting and accessorizing of an Oscar gown is put almost exclusively in the hands of a select group of men and women who work behind the scenes to arrange back and forth between the designer and their clients — that is, the nominees’ stylists.
“The challenge is doing something new and interesting, something someone hasn’t done before, something you haven’t seen a million times before,” celebrity stylist Rachel Zoe told USA TODAY. “You have to find that combination of accessibility and being fashion forward. And of course, it’s the Oscars, so you have to be glamorous.”
At the same time, a dress can have none of those attributes and still be truly memorable and highly imitated. Perhaps the most unforgettable Oscars dress of all time was universally panned on the red carpet when it debuted over a decade ago. But the now-infamous look still spawns countless imitations, often in the form of exaggerated parodies; Björk’s swan dress is knocked off on Etsy for $750. No matter its reception in mainstream media, every gown on the 85th Academy Awards red carpet in February will be scrutinized for better or worse — the good, the bad and the swan-like.
According to a Reuters report conducted earlier this month, three-quarters of the 2,105 women surveyed had at some point knowingly purchased a counterfeit designer item. Many were repeat offenders.
Exactly how prevalent is replication in the industry itself?
“There’s a huge amount,” lawyer Christopher Sprigman, co-author of The Knockoff Economy, told TIME. “You just have to go to mall to figure that out. There’s some copying that’s point-for-point. You see, for example, a dress that some starlet wears at the Oscars and afterwards you see a bunch of copies. But more, you see a lot of designers taking inspiration from other designers.”
Though the word “counterfeit” might conjure images of Canal Street vendors surreptitiously selling watches printed with the word “Rollox,” in fact much of the copying that exists within the fashion industry is perfectly legal. With the exception of logos, current law does not prevent the replication of fashion designs.
“One of the reasons that fashion isn’t protected is that we view it as functional, the same as food,” co-author Kal Raustiala explained. “It’s something you need to survive. It’s not an art form the same way that music or painting is, which have no real function. At a deep level, there is this distinction drawn in the law.”
Though the idea of copying may seem intrinsically negative, Sprigman and many others argue that copying actually sparks innovation and “makes fashion a lot more democratic. You don’t have to be rich to look great.” Currently, thanks to a proposed bill that would create a three-year window of protection on apparel designs, copyright law for fashion design might become a possibility.
No one is condoning any one brand taking undue credit for another’s designs, but innovation often expands through existing innovation, which begs the question: In a sea of copycats, where’s the line between borrowing another designer’s ideas and just plain stealing?
Budget-conscious fashion chain Forever 21 has flirted with that line many times. The company has faced more than 50 copyright lawsuits from designers such as Diane von Furstenberg and Anna Sui (who had her designs copied more than 20 times before ultimately suing). The vast majority of cases involving the company have been settled out of court. Lawyer Susan Scafidi told Jezebel, “This is just part of their business strategy. They go ahead and they take what they want, and when they get caught, they pay up. It’s probably cheaper than licensing it in the first place.”
Others haven’t been so lucky. In a landmark case, famed shoe designer Christian Louboutin — he of the six-inch heels and lacquered red soles — took fellow retailers Yves Saint Laurent and Zara to court over the company’s use of red soles on their shoes. A judge ruled, “Awarding one participant in the designer shoe market a monopoly on the color red would impermissibly hinder competition among other participants.”
According to a Wall Street Journal article published last year, “copying accelerates the fashion cycle, banishing old designs to the dustbin of history (perhaps to be dusted off and reintroduced later) and sending the fashion-conscious off in search of the new, new thing. Trends are the cornerstone of contemporary fashion, and legal copying allows them to develop and spread. Fashion show[s] that sometimes sharing an idea is more valuable than monopolizing it.”
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