The Legality of Copying Your Favorite Clothes

Susan Scafidi in The New York Times, September 20, 2010

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When I next go to China, my suitcase will be filled with some of my favorite dresses and blazers. I’m not just bringing them to wear, however. I’m also bringing fabric with me and the names of tailors who can copy the dress and blazer designs in different colors.

While getting new clothing this way is certainly cheaper than buying new designer items (not counting the plane ticket, of course), I can’t help wondering if what I’m planning to do, and what so many others have done before me, is legal. For the answer, I turned to some fashion law experts for consultation.

First, the lawyers said, there’s the question of whether the American courts would have jurisdiction over the copying because the work will be done in China. If the tailors I’m inducing to make copies promote their services in the United States, then American law would typically apply, said Giacomo J. Corrado, a New York lawyer specializing in the fashion and luxury industry and an adjunct faculty member in the international trade and marketing department at the Fashion Institute of Technology.

Even if American law applies, however, there’s no copyright violation involved in just having fashion designs copied. “The same legal structure that allows Forever 21 to knock off designs allows you to do the same thing,” said Kal Raustiala, a law professor at the University of California-Los Angeles School of Law and the university’s International Institute who has written for the Freakonomics blog on copyright law, including on fashion copyright issues. “You are not subject to stricter rules than if you were operating as a firm.”

I might run into copyright issues, though, the lawyers said, if I asked the tailors to copy certain copyrighted fabric or lace patterns or surface designs and appliqués (like a needlework picture on a Christmas sweater).

As for trademark issues, I could also run into violations under trademark law if I had the tailors copy the designer labels exactly, rip the label out of an old dress and put it into a replica or copy signature elements that were associated with the brand, said Susan Scafidi, a professor at the Fashion Law Institute at Fordham University and an academic director there.

I have no plans to do any of this, so I guess I’m in the clear. Legislation recently introduced in Congress, however, would provide intellectual protection for fashion designs for three years from the time an item first appeared in public.

Still, if the proposed legislation became law, Professor Scafidi, who helped craft it, said it wouldn’t apply to situations like mine. Not only does it set a high bar for what designs can be protected, but it would only apply to people who are having the copying done to sell the copies.

“Unless the copying overseas is for sale or trade, you as a consumer wouldn’t be liable,” she said. In addition, there is an exception in the law that allows people to copy a certain number of designs for their own use using their home sewing machines.

But, Professor Scafidi said, if the proposed legislation passed, the tailor might be liable for copying my clothes, assuming the designs were protected. Still, she said: “The vast majority of clothes that people take to Hong Kong tailors to have copied would not be protected. They are part of the public domain, they pre-existed any kind of protection or they are fairly generic.”

And if it turned out that American law didn’t apply to my situation for some reason, the lawyers I spoke with said it was their understanding that copying of fashion designs was allowed under Chinese law.

After this research, I’m relieved and ready to go get some new versions of my favorite clothes.

Share your thoughts on the legal question of copying fashion designs and your advice and strategies for getting clothing made in Asia.