In the era of social media and fast fashion, copycat culture is thriving and racking up millions for fast fashion brand owners. But for independent labels, having your creative work plagiarised has a financial and emotional cost. A reality We Are KIN's Ngoni Chikwenengere knows too well. Her story highlights the challenges of protecting your intellectual property in the fashion industry.
Ngoni Chikwenengere, founder of We Are KIN, remembers the sick feeling and wave of anxiety that came over her when she discovered her work had been brazenly plagiarised. While she is now in a better place, the fashion designer recalls it was both a visceral experience and moment she will never forget. This ordeal is not exclusive to Chikwenengere. Fisayo Longe, founder and creative director of Kia Collective, expressed disgust after her Gaia print, which has become a brand identifier, was copied. Chikwenengere and Longe, both Black women of African descent and based in the UK, have found themselves in an unenviable club — designers faced with discouragement and sometimes, helplessness because of how often plagiarism happens and how little they are heard in the industry.
In the introduction to Fashion Law’s Intellectual Property 101, the author states that the fashion business, more than simply being about apparel, is about “A company’s ability to build – and monetize – a distinctive brand by way of valuable assets that range from distinctive branding elements to prints and patterns, and proprietary design staples.” However, perusing the online pages of different law firms that specialise in Intellectual Property (IP) law in the fashion industry, it seems that copyright, patenting, and trade dressing – all different forms of IP protections – are not so evident when it comes to fashion. And many law professionals agree, including The Fashion Law’s founder, Julie Zerbo.
Chikwenengere confirms the challenges of intellectual property protections in the fashion industry, “You see these things in the industry all the time. I mean, big brands are suing each other.” Though the consequences are different for brands like Louis Vuitton who have the capital to take their cases to court (and regularly do so) compared to emerging and oftentimes, independent fashion labels. “At the end of the day, there’s nothing original about a strapless dress,” says Chikwenengere.
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To understand what Chikwenengere is referring to, the context of how an almost identical dress by her brand, We Are KIN, was dropped by fast fashion brand, We Wore What, matters. The incident raised eyebrows across the industry, with Diet Prada, the fashion industry’s whistleblowing platform concluding, “Sure, it’s a simple dress, but with the receipts, we can only come to one conclusion here...” We Wore What owner, Danielle Bernstein had been accused of stealing from other designers in the past, and according to Clara Bakosi, a solicitor, the existence of dialogue between the two parties shows there was “An opportunity” to plagiarise.
Kai Collective, Hanifa, BYDOSE and Sincerely Ria are brands owned by Black women that have found their work plagiarised by fast fashion brands in recent times. All of them have taken to social media to call-out the infringing brands; Boohoo, PrettyLittleThing (Both owned by Mahmud Kamani and his co-founder, Carol Kane), and Shein. Kai Collective would go on to take legal action. In Chikwenengere’s opinion, most cases of plagiarism boil down to “The court of public opinion.” Thanks to social media, with its relative democratic nature and the rise of call-out culture, emerging brands have been able to make use of the tool to their advantage. Bakosi agrees that social media call-outs with side-by-side images can be helpful. “Let people come to their own conclusions and make noise for you,” she adds.
The growing interest in ethical and sustainable retail among Millennials and Gen Z shoppers, has raised questions about what this means for the industry; a question Chikwenengere and We Are KIN aim to explore more closely. Fast fashion cycles compromise the livelihoods and health of factory workers, the environment, the diversity of the fashion industry, and the emotional and economic wellbeing of independent label owners; all issues that are inextricable from one another. The fast nature of the industry ensures that the above cycle will continue to repeat itself. So, how do designers move on from this kind of predation? Chikwenengere notes that her support network is what helped her get through the difficult period when her design was plagiarised. There may be a lesson in that for consumers as more people explore what it means to consume sustainably and support independent Black-owned brands in the face of trends and behemoths.
A labour of love
Chikwenengere began blogging in 2009, to “feel connected to a glamourous industry I grew up reading about.” She did not always want to be a fashion designer, and changed her mind a few times about what she wanted to do for a career. “I wanted to be a doctor when I was 16, then I decided I wanted to be a fashion journalist, and later that I wanted to be a designer,” she explains. She would go on to pursue a degree in Fashion Design.
Launched in 2015, We Are KIN, a womenswear label, debuted at London Fashion Week in 2016. It is a made-to-order, sustainable and ethical, slow fashion brand. For Chikwenengere, what makes her brand sustainable and ethical is the fabrics that are used. “Our fabrics are either sustainable or they’re end-of-line or they’re [fabric] remnants.” Fabric waste contributes to the astronomical amount of clothing and textiles that ends up in landfills. By being selective with the materials used, and by cutting the clothing items to measure, We Are KIN makes a conscious effort to reduce waste. The brand’s production space where all their clothes are made is based in London, and Chikwenengere adds that another important factor about being ethical is the people she works with. Indeed, We Are KIN gets its name from the kinship that the brand builds with the team at their local factory, and the creatives that inspire them.
Some of the items in their shop have notes by Chikwenengere, highlighting the personal nature of the pieces she designs. One of such notes reads: “I designed this dress so I wouldn’t have to wear a bra. There’s nothing worse than a beautiful summer dress that offers no support. But the strappy maxi does whether you’re big or small, the ties will have you feeling free and unencumbered!” They also come with styling and care tips and offer hemming services, so poor fit does not lead to returns. By actively refusing to follow trends, We Are KIN seeks to create timeless pieces.
A self-funded label, Chikwenengere speaks candidly and tells AMAKA that she has only been able to continue growing the brand because she has “Never had to worry about a roof over my head.” Notwithstanding, she adds that “It’s a lot of hard work to build a brand.” Her team is part-time and she often works with freelancers because she wants to be able to pay the people she works with, her kin, well. As such, there were tangible financial and emotional costs when her brand became another victim of the copycat economy. The same is true for many small and emerging brands; after pouring resources, identity, and vision into their products, many are discouraged from enforcing their creative rights, like copyright, because of the associated costs of legal action and the overwhelming evidence that not much can be done to prevent copying.
The cost of plagiarism
In an interview with The Business of Fashion, Susan Scafidi, founder of the Fashion Law Institute said that though it is difficult to quantify the financial cost for emerging designers, whose designs have been knocked off, “Often customers don’t even know that they’re buying copies, because they have never seen the emerging designers whose work has been stolen.” Meanwhile the likes of Boohoo and Shein are viral phenomena and much of their visibility comes from large hauls (A video where people show off the things they have purchased).
Recently, Diana, the founder of BYDOSE, an independently owned, UK-based luxury shoe brand took to social media to call out PrettyLittleThing. In her post, the shoe designer wrote: “ByDose hasn’t even broke out on a big scale yet, and companies like PLT have already started to do what they do best, which is steal from indie brands. This is probably every small designer’s worst nightmare.” A reality Destiney Bleu, founder of d.bleu.dazzled, a fashion brand that specialises in custom crystallised clothing can relate to. In 2017, Bleu tweeted that her work is her livelihood. Hence, she will fight for her brand. This was after being widely ripped off, with the likes of Khloe Kardashian being noted as one of the alleged perpetrators. Kardashian went as far as accusing Bleu of a “Cheap publicity stunt...to get her 15 minutes of fame,” and sent her a cease and desist letter. Like Chikwenengere, Bleu could demonstrate that dialogue had occurred between the two parties. And Bernstein, like Kardashian, also accused Chikwenengere of seeking her 15-minutes of fame.
Furthermore, smaller brands do not seek legal action beyond social media call-outs because of how costly it can be. Bakosi says that 8 out of 10 times, a cease-and-desist order is effective in getting brands to stop their infringement and can ask for payment for any costs incurred. “It should shake someone into action.” Larger brands can use their economic weight for a back and forth, and she warns: “They will try to poke holes in your claim. Provided you have a good claim to bring an action, a further letter standing your ground could allow the parties to reach a settlement. But the key is enforcing.”
As well as the financial cost of losing out on business because of fast fashion brands selling items much cheaper and having a wider reach through platforms; Black women designers risk online harassment given how they are disproportionately affected by online abuse. Call-out culture, combined with the work of platforms like Diet Prada and The Fashion Law demonstrates there is a desire to hold offenders accountable for their infringement and plagiarism. Social media has been a powerful platform to amass support for small brand owners. Though challenging today’s fast fashion goliaths is a different story.
Chikwenengere would personally not recommend going viral due to the mental and emotional burden that comes with it. While she received great support, even from places she never expected within and outside the industry, she found the experience to be overwhelming. “It was worse than I ever thought it would be. Everyone knows and everyone had an opinion and being on the back end of that was a lot,” she says. “Everyone does not have the kind of support I had.” Understandably, Chikwenengere would rather not talk about Bernstein either. “I’m tired of talking about that girl.” The key to moving forward and focusing on the future of We Are KIN according to her is in the community she has built around herself.
Kinship and building resilience
How do you move forward in an industry where as an independent and emerging brand, your energy is being consumed as you try to survive, instead of being able to thrive sustainably? Legally, “Enforce, enforce, enforce. It’s daunting but there are ways to be protected,” says Bakosi, who comes from a creative family and her passion for IP law stems from her desire to protect creatives like her family members. Though individual legal protections can be useful for emerging brands, fast fashion brands will continue to rip off those who do not have the same protections or enough clout to pose a sufficient threat. Chikwenengere credits the community that stood with her as one of the reasons for being able to refocus her energy. From the moment she was considering issuing a statement, to going viral after releasing it, to everything else that happened out of the public eye, her friends and family were supportive throughout.
With social media virality, it would seem that a community forms online to rally behind independent designers that face infringement. However, likes and comments don’t always translate to action according to writer, stylist and consultant Aja Barber. And though we feel bad for independent designers, we also rarely boycott the infringing brands as outlined in a Twitter thread she did earlier this year. Similarly, while Millennials and Gen Z consumers are increasingly vocal about sustainable fashion, shopping habits do not always reflect it. The price and easy access of fast fashion clothing items appeal to the priorities of shoppers. It is worth acknowledging that everyone’s shopping abilities are not the same, and brands like Shein count on consumers with more disposable income and their hauls. It is also important to reflect on why fast clothing items are sold so cheap and how exploitative the labour could be. On the other hand, the high price of an item is also not necessarily indicative of the labour conditions. Barber concluded in her thread that “If you value a diverse fashion industry where many can play instead of a small few, turn your critical lenses to fast fashion. Because as long we remain okay with businesses which thrive on knocking off we’ll continue to have a landscape where most small brands fold after 5 years.” Barber’s concerns are valid because in her interview with Buzzfeed, Longe of Kai Collective said: “I just want more people to take it seriously and apply more pressure on these brands, and care more about the ethics of these brands.” This alludes to the unspoken truth; if we claim to want to support Black businesses, then we must remember that part of supporting them is not supporting the brands that actively prey off their work.
Being timeless in an industry that moves so quickly is not easy, but the safety net she has around her and the determination to keep pouring into We Are KIN has allowed Chikwenengere to weather the storm. But there needs to be a long-term solution to make sure all emerging brands can sustain themselves in the long run; whether they can pursue legal action or not (or afford legal protections to begin with) and whether they have safety nets or not. As consumers, we have a responsibility. Slow fashion can be intimidating, but as the discussion is democratised, we are encouraged to start where we are and to continue learning and slowing down. We have an important role to play in changing the fashion landscape, but we must choose ethics over trends because the next trend could very easily be another ripped off design.