Fashion Lawyer Julie Zerbo Explains the Laws Behind Bootlegs
By Alec Leach in Style
This story appears in Issue 16 of Highsnobiety Magazine.
Streetwear's obsession with cultural sampling means the gen- re occupies somewhat of a grey area, legally. That can create some difficult situations: What, exactly, is the difference between a homage and straight-up copyright infringement? Julie Zerbo, the fashion industry's go-to legal expert, explains the legalese in layman's terms.
Remember those awful designer parody T-shirts that were inescapable a few years back? Around 2011, 2012, the internet was awash with startup brands making quick cash off tongue-in-cheek T-shirt memes. Hermès became Homies, and A$AP Rocky catapulted Russ Karablin's OG streetwear label SSUR into the spotlight when he wore the brand's COMME des FUCKDOWN beanies in the "Goldie" video.
Perhaps the most famous instance of designer parody-wear was What About Yves. A line of novelty tees founded by Jeanine Hellier, What About Yves responded to Hedi Slimane's controversial 2012 rebranding of Yves Saint Laurent's ready-to-wear line by printing a tee with the slogan, "Ain't Laurent Without Yves." The T-shirts enraged Slimane, who pulled Saint Laurent's collections from colette after the Parisian concept store sold the parody tees (an anecdote that's even more amusing now that colette has closed and its space is being occupied by—you guessed it—Saint Laurent). Hellier, meanwhile, found herself staring down the barrel of a lawsuit from Saint Laurent's lawyers, who claimed her products were guilty of "trademark infringement, trademark dilution, false designation of origin, and unfair competition."
You'll still stumble across the occasional meme tee every now and then, but for the most part, the trend is (finally, mercifully) dead—lowered into the hype graveyard, right next to Been Trill and Hood By Air.
It's easy to look at designer parody tees as an embarrassing footnote in fashion history, but they were actually the first steps in the industry's ongoing obsession with irony. Today, Gucci is putting "Guccy" on the runway, and Fendi is riffing on the FILA logo with pieces designed by Instagram artist @hey_reilly.
For fashion houses, the craze is a grab for eyeballs, a frantic battle to try and excite the Instagram generation, but for streetwear, a genre that's built on appropriation, the obsession with logo flips poses an interesting conundrum. Streetwear is all about cultural sampling, and brands have built empires off the back of logo flips and unofficial homages—just take a look at the Instagram account @supreme_copies for proof. Now, when streetwear is the norm and Supreme has been valued at $1 billion, we've found ourselves in a giant paradox where a genre built on cultural sampling has become the prime target for counterfeiters, bootleggers, and fast fashion knockoffs. A phony version of Supreme has even been doing business in Italy, complete with its own flagship store. Italian authorities recently confirmed they had seized 120,000 counterfeit Supreme products.
That doesn't mean fashion has lost its taste for knockoffs, though. Gucci has not only printed its own luxe versions of black market logo tees, it's legitimized the operations of legendary bootleg tailor Dapper Dan, and even ran "real bootlegs" of its own logo on the runway. This past New York Fashion Week, Diesel went one step further, and produced its own parody "Deisel" pop-up shop on Canal Street, the city's mecca for counterfeit goods. Streetwear's cultural eclecticism and appropriation are a big part of what makes it so fascinating, but what exactly is the legal status of all of this bootlegging? Perhaps a lawyer would know.
Julie Zerbo started The Fashion Law in 2011 while she was in law school. She's been a ballet dancer and an economics major in previous lives, but now she's an expert on intellectual property—the legal driving force behind so much of the fashion industry. She's an expert resource for journalists, but also a voice who's unafraid to call out bullshit when she sees it—whether it's brands using shady labor practices, or Instagrammers not properly disclosing when a post has been paid for. Zerbo lays down the law around the legal grey area that streetwear occupies.
Streetwear as we know it is based on appropriation—people flipping recognizable logos and motifs. Where does the law stand on that kind of thing? At what stage does a T-shirt rip become a legal problem?
It really just depends on the extent of the use of another party's trademark. Trademark law basically says you can't put, like, the word "Gucci" on your shirt and sell it. You know, 'cause people might think that it's actually
coming from Gucci.
At least in the United States, the laws can be tricky. As we saw a few years ago, there's a big thing with brands using others' logos and then saying, "Oh but it's a parody." And courts are really split on that: What is a parody as opposed to a trademark infringement? There isn't a bright line answer other than that you can't use another brand's name or logo without authorization in a way that might confuse consumers, which is why, in the case of VETEMENTS, they licensed the DHL name and logo. If they hadn't, that would have been a very easy trademark infringement win for DHL.
Before the last few years, when luxury brands really started talking about "streetwear" and putting it on the runway, it was something that high fashion brands didn't want to be associated with, which is why the references oftentimes did (and still do) go uncredited. Kind of like when the Gucci/Dapper Dan thing first happened. In some ways, it is kind of like how brands spend a ton of money to ward off low quality Chinese counterfeits. It's very much about protecting their image, the hundreds of years, and hundreds of millions of dollars that they have paid to establish their names and logos within the luxury sector. It's delicate.
In Supremacist, Al Shapiro's book about Supreme, he speculates that the reason Supreme gets away with constantly flipping logos is that everything's produced as a limited-edition. If they want to do a T-shirt, say, with a salt manufacturer's logo, then because it's such a small product run, by the time they get the cease and desist, everything's sold out anyway.
I think there's merit to that argument, but the company could still sue. Supreme has records on how many products were made bearing Morton Salt's trademark or copyright-protected image, and then the company could say, even if you did sell all of them, we want you to pay us all the profits that you made.
How do retailers like ZARA and Topshop get away with taking ideas straight off luxury brands' runway shows?
There's a few answers, but the first is that ideas aren't really protectable by law. Copyright law protects the actual, tangible expression of ideas. So if you have an idea to make a dress with a specific print, the law may protect aspects of the actual piece that you see on the runway, but it doesn't protect the general idea. Copyright law also doesn't protect useful articles because it doesn't want to grant a monopoly on things that are useful. Let's say you come up with an original floral print and you put it on a dress. That print is protectable but no other aspect of the dress is because dresses are inherently useful.
Let's say you come up with an original sleeve design. Under copyright law in the United States, because more or less everything that you use to cover your body is considered to be useful, you can only protect that original creative element of the shirt: the sleeve. So that's why companies like ZARA, Forever 21, and H&M have been enormously successful. Yes, we hear about lawsuits involving those companies but considering the pure volume of garments and accessories that these brands sell, there are very few lawsuits. And the cases that we do see tend to be ones that involve specific elements like a T-shirt graphic or a trademark-protected name or logo, because those are protectable.
Brands can easily create a sweatshirt that looks and feels a lot like Gucci but doesn't actually use the Gucci name or the Gucci logo, and that would be perfectly legal. Companies like H&M and ZARA, for instance, have gotten really good at taking specific trends from the runway, changing them just enough so that they're not illegal, and selling them.
Just down the road from where I live in Berlin there's this shop that sells shoes identical to Nikes, but without the Swoosh on them.
Yeah, so obviously they know. They have someone telling them that if they use that logo, the shoe becomes a trademark-infringing shoe or more likely, a counterfeit shoe. And to be frank, something like the Air Force 1 is so iconic that it might be protected by trade dress law, which essentially says that the design of a product is so iconic that if consumers see it, even without the brand's name on it, they'll know where it came from. But that's a hard level of protection to achieve.
It's funny you should say that, because the sneaker industry is filled with brands that make a really expensive version of an Air Force 1 or a Vans Slip-On. My mum would think they're the same shoe, but they're five times the price.
Yeah. There is a chance that the numbers of products that are actually so small that it just might not be worth Nike or adidas's time. Litigation is expensive. The Céline [Air Force 1-like silhouette] from awhile ago, and also the recent VETEMENTS "Stan Smith," are pretty problematic. But in terms of gauging whether or not something is actually infringing, there are a bunch of things to consider. One is, are they similar in price? If one is so much more expensive than the other, there's a good chance consumers won't be confused as to the source of the "copied" product.
The big question is whether or not people are going to be confused. Are people going to think that this is actually a Nike sneaker? Are they going to think that this is a collaboration with Nike, that Nike in some way endorsed or is allowing this shoe to be made? Wildly different price points might make it so that people won't be confused. Obviously, the absence of a logo on the Common Projects one is a very big deal because even though they don't look identical, if Common Projects were to put the Swoosh on its shoe, it would automatically be illegal. If it's truly a one-off or just a few-off, then Nike and adidas have bigger fish to fry. I mean adidas is busy suing no shortage of brands, so they're a little bit busy.
So adidas is an especially litigious brand?
Yes, adidas is very litigious. They have sued Juicy Couture, they've sued Forever 21, they've taken action against FC Barcelona. They've tried to invalidate a trademark from Tesla. Almost anything with three stripes on it, whether it's fashion or sportswear or apparel related, adidas has probably taken action in some way or other.
Is it true that as long as you can prove that there's 10 things that are different about a product, then it's okay?
That's absolutely not true. I hear that one a lot. People bring it up all the time. I don't know where it came from, but it is categorically incorrect. Nowhere in the law does it say, "Yeah just change 10 things." It's all a bit more complicated than that.
We've talked about the gray area between homage products and parodies, but when it comes to straight- up counterfeiting, how the hell did a fake version of Supreme manage to be doing business inside the EU? Supreme has stores in London and Paris, which are inside the EU. How would a brand in Italy go about completely operating its own fake store?
I think it's not a matter of whether or not this was legal or not—it's very clearly illegal (whether the founders of Supreme Italia acknowledge that or not), James Jebbia (by way of his CHAPTER 4 CORP.) has rights in various Supreme trademarks, including the red box logo, regardless of whether he has trademark registrations or not. You do not need a trademark registration in order to claim trademark rights, that's not how trademark law works in most of the world.
As long as you are using the mark and consumers identify that mark with your brand—as consumers do when they see the red box logo—then you have rights. There's a chance that Supreme (the real Supreme) just didn't know about Supreme Italia and that's how a lot of counterfeiting operations exist for so long, because it is a brick and mortar store. Where in Italy is it?
I think it's in Barletta. Real far in the south.
Okay, so there's a very real chance that Supreme just didn't know about it.
Do you know PYREX Vision? It was Virgil Abloh's brand before he started OFF-WHITE.
Yes I do.
There's another knockoff brand called PYREX Original in Italy as well. I ran across their booth at Pitti Uomo a few seasons ago, and they have basically taken everything that Virgil Abloh designed under PYREX Vision and rebranded it.
Oh, they're bold.
I was speaking to the guy at the booth and straight off the bat he was like: "Oh, we own the copyright now." I'm assuming Virgil Abloh never copyrighted PYREX Vision when he was doing it, because he was doing the brand for such a short amount of time.
This is probably just a matter of Abloh and his legal team focusing on OFF-WHITE and not PYREX Vision. It turns out, PYREX Original does actually have a trademark registration in the EU and in the U.S based on that foreign registration. Considering that Abloh did not oppose the foreign PYREX trademarks, I'm guessing that he is not interested. It would be wildly hypocritical for him to try to sue since he did not even come up with the PYREX name, which is the name of a kitchenware brand.
I suppose to many people, counterfeiting is pretty innocent, but it's really tied up with a lot of extremely shady labor practices, isn't it?
Time and time again, there have been studies and reports that show that counterfeit T-shirts and shoes are tied to criminal organizations, or are in some cases funding organized crime, and things like that. So in that way, it's not something that should be taken lightly, and at the same time there's a lot of questionable labor practices that go into it. When it comes to labor, though, it doesn't even have to be counterfeit for there to be supply chain issues. I mean just this past month, 120 or 130 people passed out in a supplier factory in Cambodia for Nike and adidas because there wasn't enough ventilation in the factory. Granted, adidas isn't funneling their profits to organized crime like counterfeiters are, the state of manufacturing for garments and accessories is really subpar still in 2018—almost across the board.
When I was growing up in the '90s, I remember all these stories of sweatshops and labor malpractice. It's not like I was reading Naomi Klein when I was 13, but the stuff she talks about, her attitude to fashion, is exactly what I remember hearing from my mom and my peers when I was younger. Fashion felt like a real dirty word at that time. Do you think it is?
No. No. I still don't think it is. I think it's great. I think it's beautiful, it's fun. For me, there's a reason that I keep choosing to write about this industry. It's meaningful. It touches so many lives. It's a powerful disseminator of culture. I think that anyone that says fashion is a dirty word is not considering the whole picture.
It's hard. You just feel like creating beautiful things shouldn't be coming at the cost of the world. They're not mutually exclusive.
Right. They definitely shouldn't be. I think, right now, we're in a fortunate situation, because transparency is such a buzzy topic. It is part of the discussion. This is the moment that I've been living for, when people actually are showing interest in addressing some of the problematic aspects of the industry. This is a time when we can affect change, and that's exciting.
You've written a lot about the legal implications of influencer marketing, where people aren't fully disclosing when a post has been paid for or not. But to a lot of people, that doesn't really seem like much of a big deal.
Yeah, it's not a big deal to most people. For me this is significant because it's a consumer rights issue. Whether or not you care if a post is sponsored is beside the point. What is really relevant is that the law requires that consumers, whether they want to know or not, be given all of the information that they need when they're viewing something that's been paid for. And that extends to Instagram. This is something that is observed across the board. Just because the laws, as they always have, have taken a little bit of time to catch up to technological advances, like Instagram, that does not mean that consumers should be deprived of information. So for me this is a much bigger issue than just someone posting #ad or not on Instagram.
Do you think, compared to the '90s, that the fashion industry is improving?
Yes and no. Nowadays, I personally have quite high expectations for how brands should be managing their supply chains, for example. In that way, I think things might not be that much better. One of the big examples that everybody tends to know about is the Rana Plaza tragedy in Bangladesh a few years ago, where over 1,100 people died because this building, which housed a handful of garment factories, was structurally unsafe.
For me, the thing that's most upsetting is that there are so many women and girls, and young boys, too, that are ensnared in this manufacturing sector, where they are really presented with the worst of both worlds. They're either given "financial freedom" by having this job, or they're in a potentially even worse situation. And the global manufacturing sector comes with really serious concerns, like consistent exposure to emotional and sexual harassment, which we love to talk about in connection with Hollywood and is something that is virtually ignored in terms of garment manufacturing. So many of the clothes that we're wearing, whether it be from mainstream brands or even some of the higher-end ones, they're not in any way removed from this. What about those women's rights, too?
How do you think we can move forward on that?
There is a really boring answer, and that's where brands need to really revamp their codes of conduct for each country in which they're operating. They should demand and practice more oversight into the factories that they're using to ensure that subcontractors are not being used, that women and girls are not working from their homes undocumented, without any of the employment regulations that we would otherwise expect from people working in factories.
I was just reading the other day that to pay a living wage to an Indian garment manufacturing laborer would cost 10 or 20 cents more per shirt. So, these are doable things. Part of it is, if brands were to step in more, they would take on a lot more liability legally, and that's just not very attractive.
A lot of these steps have to be taken by brands, but consumers can lobby, whether it's on Twitter or in terms of spending, to make brands aware of their values, and let them know that they don't want garments and accessories that were made in sweatshop conditions. I think that, honestly, we're quite far away from that, though, because people buy what they can afford, and right now, the prices in fashion are so drastic. It's like, if you can't afford Gucci, you buy ZARA or H&M. There are not as many brands operating in that in-between space anymore.
Global supply chains are so complicated now, and a lot of people don't actually know where everything is coming from. If you buy a roll of denim, you don't always know exactly where the yarn's been made.
Being more responsible about your supply chain is really, really difficult, and it's really expensive. I'm not trying to minimize that, by any means. But, do I think that's truly doable by H&M and ZARA? Yes, I really, truly do.
This story originally appeared in Highsnobiety Magazine Issue 16, which is available now from our online store, as well as at fine retailers worldwide.
julie zerbo
the fashion law
Words by Alec Leach
Freelance Writer/Editor/Consultant
alecleach_ alecleach_
Alec Leach grew up in Brighton, England, but now lives in Berlin
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