Borrowing vs. Stealing in Fashion Design: Where’s the Line?

In the world of fashion design, where do innovation and inspiration begin and end? Where does imitation begin? In an industry where originality is highly valued, and copying takes various forms, this article covers the concepts of stealing and borrowing in fashion. Further, we explore the gray areas of the industry, giving examples of cases of design theft.

Borrowing in fashion

“I've seen quite a lot of major brands replicate artisan-made designs and take them as their own instead of crediting the original designer. That's stealing. A better way to do this is to pull inspiration from a specific texture or pattern and adapt it into something that is unique and truly new. You should be thinking about how you can take a design to the next level instead of just copying it.” - Robert Behnke, Co-Founder and President of Fair Indigo.

Fashion designers are artists. More often than not, they draw their inspiration from cultural influences, historical fashions, and the latest trends. Their creative compass is shaped by their experiences in art, travel, and street culture, among others. Borrowing from multiple sources, they iterate their genius ideas, carefully perfecting each. These form a blueprint for their final product.

Just like sampling in music, borrowing exists in fashion to accelerate the creation of new ideas. And rightly so, credit must be given to where it's due. The concept of borrowing comes down to the unwritten rule of respecting cultures, designers, and artists whose work the inspiration is drawn from.

However, with everything available to everyone around the world with just a click, the concept of borrowing in fashion has become an even larger gray area. Nowadays, you can utilize multiple social media platforms and websites to advertise and showcase your work. In an instant, it'll be accessible to several others who may seek inspiration. 

You could argue that borrowing thrives on the positive ethics and guilty conscience of designers. When done right, it's a critical tool for the growth of the global fashion industry. This was when designers paid tribute to their role models and different cultures and reimagined classics.

Some of the ways borrowing has been demonstrated in fashion include:

• Trend adaptation: This involves the incorporation of current trends into fashion while maintaining originality and uniqueness.
• Reinterpretation: This is the inclusion of modern art twists to fashion classics. 
• Reference: A subtle nod to fashion from a different era or designer.

Stealing

Humans have piggybacked off ideas from one another since the beginning of time. As a matter of fact, it's difficult to ideate a fashion design that somebody else didn't come up with years ago. When you're stuck on a project, you turn to the works of a designer you respect or respond to. 

Austin Kleon, in his New York bestseller, "Steal Like an Artist," pointed out that a very small percentage of people come up with something entirely new. He noted that creatives could copy, remix, or orchestrate any other form of imitation to create something in a completely artistic manner. While this may be true, it becomes outright theft and completely unethical when credit is not given.

Some forms of stealing in fashion design include replicating exact designs by other creatives without defining changes, basically creating "knockoffs." Misrepresentation by passing off another designer's work as your own and mass producing and distributing copied designs are other forms of stealing in fashion. 

Gray areas

A thin line exists between borrowing and outright stealing in fashion. However, there are several factors you can consider to establish a distinction. 

1. Originality: This is a defining concept in this industry. The more likely you are to come up with more original elements in your work, the less likely you are to be called out for design theft.
2. Your intention is key: Is the inspiration you're drawing from other designers' works meant to create something new, or are you looking to capitalize on their creativity?
3. Substantial similarity: In some instances, your designs may bear close resemblance to someone else's work and could be considered a copy - even though it's original.
4. Credit: When your designs are influenced by another designer's work, crediting them is a sign of respect and transparency. It passes you off as an ethical player in the game.

Effects of stealing on fashion design

1. Career death: Outright theft of designs could ruin your credibility and reputation in the industry. For an industry that thrives on reputation, negative reviews could send your career down the drain. Also, big designers stealing from smaller players could run them off the business.
2. Brand dilution: Knockoffs to various brands globally only serve to dilute a brand. If someone reproduced some of your best work and sold the products for half the price, your brand could suffer damages to its reputation.
3. Limiting creativity: The fact that people can copy-paste a design and go to market hugely limits creativity. Why spend time and money creating a design when you can steal and sell? This, to some extent, is a detriment to the development of new designs.
4. Legal action: If you're found to have infringed on a protected brand, you could face legal action. You may be forced to pay monetary damages and remit design profits if found culpable. 
5. Consumer deception: Many consumers have been deceived by copycat products to the extent they may not know the original source.

Intellectual property law in fashion design

In the United States, not all fashion designs are explicitly protected by intellectual property (IP) laws. This leaves designers exposed to threats of IP theft. 

Fashion designers can rely on three types of IP laws to safeguard some portions of their designs:

1. Copyright law to protect textiles or graphic designs
2. Trademark law to protect logos, marks, symbols, words, or phrases on designs.
3. Design patent law to protect original ornamental designs.

While the Lanham Act stipulates what can be trademarked, copyrighted, or patented, it doesn't serve to protect the aesthetic features of fashion designs. Some huge brands have, however, managed to incorporate logos into their designs and heavily policed any unauthorized use of their marks. Some of the marks have acquired secondary meaning and can be recognized by consumers as source identifiers.

Unfortunately, most smaller fashion brands and designers don’t include any trademarks in their designs. They lack the resources to proactively and consistently prevent unauthorized use of their trademarks. As a result, big brands have extensively utilized this loophole to rip off smaller brands and produce and distribute counterfeits.

Industry examples

Big brands have often faced accusations of copying independent designers' work, sparking debates about intellectual property rights and ethical business practices. The following cases highlight how small creators have taken on industry giants over alleged design theft:

1. Mère Soeur vs Old Navy

In April 2018, British designer Carrie Anne Roberts had her merchandise copied by Old Navy. Her best-selling products at the time, t-shirts printed "Raising The Future" across the chest, had been allegedly copied by Old Navy and sold at half price. The fashion giant had also allegedly copied her kids' t-shirts printed “The Future.”

Roberts posted the alleged duplicates by Old Navy on her Instagram page, lamenting about being copied by a huge brand. Her customers and followers also left negative comments on Old Navy's page. They also gave the brand negative ratings on the company's website.

The negative criticism saw Old Navy pull the tees from their website. Some were, however, still available for sale in the stores. They replied to Roberts via email, stating that she had not trademarked the phrases "Raising the Future" or "The Future." The global brand highlighted that she didn’t have a trademark for the font or graphic designs of the t-shirts and, thus, had zero legal rights to them.

"I was a single mom, and the idea behind this T-shirt inspired my whole business. Now it's been stripped of all meaning, and it feels really violating," she noted.

2. Krista Perry vs SHIEN

In 2023, Massachusetts designer Krista Perry told TIME Magazine that SHIEN had sold one of her graphic designs she had created online. She told the publication that the brand offered her a $500 settlement when she contacted them.

What's the remedy?

To create a more ethical and sustainable fashion industry, designers should invest in open discussions and education. Values like originality, creativity, and responsible trade practices should be promoted. In the event you want to protect a design and are unsure of the process or are wary of infringing on another designer's IP, seek the services of a qualified intellectual property (IP) attorney.

Additional resources

• What is a Design Patent: Definition and How It Works
• How to Trademark a T-shirt Slogan — a Step By Step Guide
• 4 Things You Can Trademark (Other Than a Logo, Name or Slogan)

Glossary of legal terms

• Trademark: A word, name, symbol, device, or any combination thereof - used by a person to identify a single source of goods or services - from those goods or services manufactured or sold by others.
• Copyright: The USPTO defines copyright as a form of intellectual property that protects original works of authorship.
• Patent: The USPTO defines a patent as a property right granted by the government of the United States of America to an inventor "to exclude others from making, using, offering for sale, or selling an invention or importing the same" for a limited time in exchange for public disclosure of the invention when the patent is granted.
• Intellectual property (IP): Refers to creations of the mind. This includes inventions, literary and artistic works, symbols, words, phrases, and images used in commerce.