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Photo: Style Mafia

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Are High-Fashion Copies Actually Legal?

Knockoff sites are at an all time high

You’ve seen them on Instagram — tagged in a photo of one of your favorite style bloggers — and you stumble upon them regularly on websites like Vogue and Refinery29. You might even purchase from them, maybe as often as they refresh their inventory — every two or so weeks, like clockwork.

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It seems like high fashion knockoff sites like Few Moda, Loéil, Style Mafia, and Style Nanda are at an all time high, and similar to large fast fashion chains like Zara, Forever 21, and H&M, they spew out fresh-off-the-runway trends at lightening speed.

They're the new group of fast fashion retailers popping up across the World Wide Web, peddling clothes that are so close to the runway originals that they've lead to some amusing double-takes. And to be honest, they're pretty spot on. Even more surprising, a lot of them are based right here in the U.S.

There's the Los Angeles-based womenswear label Loéil that — despite being only a year old — has managed to catch the attention of fashion bloggers and stylists for it's selection of cheap knockoffs. Although its headquarters are based in the States, its website says that the creative and production teams are based in Asia, which may explain the unbelievably inexpensive prices (a $68 pair of two-tone slingback pumps similar to Chanel's and a $48 "Hello Boys!!" T-shirt that is pretty close to Vetements' $330 version).

(Left) The original MSGM blouse for $414. (Right) Few Moda's rendition.

The website Style Mafia is similar, except it's owned and founded by Miami fashion blogger Simonett Pereira. The website has garnered over 50,000 followers on Instagram and has been featured on notable fashion sites like Man Repeller. You'll find a number of their doubles — one of them being a $69 pair of ruffle-hem jeans similar to Marques' Almeida's — on everyone from the fashion blogger Olivia Lopez (@Lustforlife) to the designer Mari Guidicelli (@mariguidicelli). They also participate regularly at Miami Fashion Week.

Bloggers play a major role in pimping out these stores to the masses. The NYC-based knockoff site Few Moda even has a "Blogger Program," where influencers with over 5,000 followers on Instagram can get free clothes if they share photos of their Few Moda items with followers. The majority of the prices on the website range from around $30 to $150, and its probably where you'll find the most blatant knockoffs, like a $99 "VETEMFNTS" (sic) hoodie and a look-a-like Gucci gingham shirt for $109.

If you want to get technical, these websites aren't knocking off every luxury designer out there; just the ones who have garnered enough buzz and support across the Internet and on social media. Demna Gvasalia's Vetements, a cult-favorite at Vogue and with just about every fashion editor at Fashion Week, is repeatedly copied. Minimalist brands like Jacquemus and Céline and popular shoe brands, from Maryam Nassir Zadeh to Mansur Gavriel, are repeat victims, too.

These high fashion designers are no strangers to knockoffs from fast fashion sites and other designers. This past June, the young Italian shoe brand Aquazzura decided to take legal action against Ivanka Trump for allegedly replicating its beloved "Wild Thing" sandals. Meanwhile, Zara, H&M, and Forever 21 are repeatedly called out by brands and indie designers for copying.

Photo: Style Nanda.

Which begs the question: Are these fast fashion websites legal? And how in the hell are they getting away with this?

According to UCLA law professor Kal Raustiala and NYU law professor Christopher Sprigman, co-authors of the book, The Knockoff Economy: How Imitation Sparks Innovation, it's probably because fashion is not (and has never been) protected under copyright law — a law put into place to prevent the unauthorized copying of a work of authorship in the U.S.

Copyright law does, however, cover literary, dramatic, musical, and artistic works (but fashion is still not considered "art" to lawmakers no matter how many Metropolitan Museum of Art exhibitions The Costume Institute puts on). "Fashion has never been protected under copyright because in the U.S. it has always been viewed as useful or functional," said Raustiala.

Congress views the utilitarian nature of clothing and fashion as more important than its artistic or stylistic purposes. In other words, clothes are needed to avoid nakedness more so than they are for getting snapped by street style photographers. Who knew?

The parameters are something fashion designers have had to deal with for decades. "Ever since the 1940s, there have been attempts to try to get fashion to be covered by copyright, and it's just never worked," said Sprigman.

(Left) The originals by Marques' Almeida. (Right) Style Mafia's versions.

The latest attempt to stifle the knockoff industry came in 2011 by the Council of Fashion Designers of America in order to help young fashion designers compete in an industry where fast fashion retailers freely copy designs mere weeks after they first appear on runways. The Innovative Design Protection Act (IDPA) pushed to offer new, original designs a three-year protection term. It failed to pass Congress in 2013.

To clear up any confusion about what's legal and what's not, it's important to point out that these websites aren't selling counterfeits, but knockoffs. Sprigman says that things are considered counterfeits when a trademark is actually being copied.

"If you went to Canal Street and bought a handbag that said Chanel, but it wasn't really Chanel, and it had a fake Chanel mark, that's usually considered a counterfeit," says Sprigman. "It may not look like a Chanel bag at all, but if it has a mark on it that says Chanel or is visibly indistinguishable from the Chanel mark, the law considers that a counterfeit and that's illegal."

While that "VETEMFNTS" [sic] sweatshirt from Few Moda does look an awful lot like it says "Vetements", it doesn't, so it's A-OK.

Knockoffs, on the other hand, are different. "A knockoff is more of a loose term that you can define in a whole bunch of ways, but it's similar to what we have here [with these websites], where there's an item, and the item is kind of similar in some way," says Sprigman. "It's typically not considered illegal, especially when it comes down to the design of a work of clothing."

Sprigman and Raustiala wrote extensively about copyright law and the American fashion industry in their book, The Knockoff Economy. In it, they argue that knockoffs aren't only legal, they're actually benefitting the industry. They call it the "piracy paradox" where on one hand, while the behavior of copying someone else's designs is questionable, it's actually accelerating the pace of innovation in the industry all the while making it more profitable and vibrant.

Photo: Style Nanda.

Unlike music, film, or publishing, duping hasn't deterred fashion designers from creating, which is the sole reason why copyright law exists. "Copyright has an intent behind it, and the intent is to protect creators so that they continue creating. What we looked at when we looked at the fashion industry, we saw an industry that was very very creative and puts out tons of new ideas every season and has done that continuously for decades. It seems like an industry that is doing very well without copyright protection, and in fact, we think it does well because there is no copyright protection," said Raustiala.

Just about every fast fashion chain has attempted to recreate Vetements' signature patchwork jeans, and no matter how many handbags Karl Lagerfeld designs at Chanel, there will always be cheaper, slightly-altered versions you can snatch from somewhere else. But despite the anger and the lawsuits, fashion continues to move forward. Trends are forgotten in six months, are recycled two years later, and the world moves on.

If the American Congress ever did decide to make the CFDA's IDPA the law of the land, Sprigman and Raustiala don't predict a peaceful outcome.

"You would see just this upsurge of copyright litigation in the courts. Right now the industry is competitive and healthy, and there are lots of young people coming into it. Some of them succeed, some of them fail. But it's an industry that you can enter. It's not dominated by a few large companies. Everyone would be accusing everyone else of copyright infringement. You're going to get an environment where larger companies start to dominate because they can afford great lawyers. The upstarts can't. So that's what we worry about," said Sprigman.

See below for Kal Raustiala and Christopher Sprigman's side-by-side analysis of three knockoff pieces.

Gucci v. Few Moda

"There are a couple of possible legal problems with this one. The thing that looks similar is the fabric pattern. There is copyright protection for fabric patterns, but in order for a fabric pattern to infringe another fabric pattern, it has to be very very similar. There's also another potential problem here, which is a trademark problem. It's possible if someone is wearing the shirt, people might actually think that shirt originates from Gucci if they misread the print. It's got to be very close to bring about criminal liability. It has to be virtually indistinguishable. But even if it's not reasonably close, there could be civil liability for trademark infringement, because a court can hold that that is, in fact, a confusing use of a mark that's similar. So that shirt can be a trademark problem, and it can be a fabric design copyright problem."

Vetements v. Style Nanda

"There’s no fabric design issues here, because the fabrics are very different. The design issue has to do with where the neck is constructed. This is dress design. Copyright doesn’t cover dress design. A lot of fabric patterns have been around forever, and you can’t claim copyright in that pattern. Just so you know, the reason patterns are copyrightable, is that it’s like a 3-dimensional drawing essentially (and art is covered under copyright law), like a painting on a wall. But you can’t copyright something that’s been around forever like plaid or pinstripes."

M2Malletier v. Loéil

"Bags will sometimes be attached to garments when it comes to copyright law and be considered a functional thing. But we do have a concept called design patent. For handbags, and shoes, and certain kinds of technical clothing you’ll see companies try to get design patents. So it’s possible, in this particular case, that there’s a design patent issue. Unlike a copyright that you can get pretty automatically, you have to apply for a design patent and it costs a lot of money and takes a lot of time. A significant percentage don’t even get granted. You have to convince the patent office that your design is truly novel and different from anything we’ve ever seen before. It takes a while to get it. It might take a year or more. So for most clothing that’s coming down the runway that’s going to be gone in a year or six months, it doesn’t make any sense. Unless the article is going to last for a few seasons, it’s just a waste of your time."

Watch: How to Spot Fake Designer Bags

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