Ever wondered how Forever21 manages to get away with overtly copying so much designer clothing? To date the fast fashion giant has been sued no less than 50 times, by everyone from Diane von Furstenberg to Phillip Lim, and not once has it been convicted of trademark or copyright infringement. In the wake of its lawsuit with a blog whose sole purpose was to make fun of its clothing, and on the eve of the opening of its first store in the United Kingdom, the legal calculus that makes it possible for the business to expand at the expense of innovative designers is more fascinating than ever.
In an interview with Fordham University law professor Susan Scafidi, the good people at Jezebel found that settling its various infringement lawsuits out of court is how the chain has managed to keep its lights on. The company is estimated to be a $3 billion operation, and a little of that money can go a long way toward getting an angry brand, like, say Trovata or Anna Sui, to call off its lawyers. It also goes a long way toward helping Forever21 get exactly what it wants. Per Scafidi:
“Over time I realized that they’ve been caught so many times, they’ve been publicly exposed so many times, they’ve even been sued — although many fewer times, because all they do is settle — and the lightbulb went off: this is just part of their business strategy. They go ahead and they take what they want, and when they get caught, they pay up. It’s probably cheaper than licensing it in the first place.”
In an interview with The Guardian, however, Forever21’s creative director Linda Chang said the company has never actually settled a lawsuit. Nope. Not once. Because they’re not the ones actually manufacturing the goods, just the one’s selling them, the burden of
“We’ve never settled,” she says of the label’s lawsuits, making unquivering eye contact. “We’re not manufacturing goods ourselves,” she clarifies – they use third-party manufacturers – “and we’ve put legal procedures in place [to avoid breaching copyright]. On in-house designs, our influences are always stated.”
Those legal procedures they’ve put in place must not be too sound, though — the post on Jezebel points out the company’s newest print is a near-identical copy of one from a label called Feral Childe. That brand’s designers have fine arts backgrounds and design all of the prints they use on their own. And because prints enjoy a level of copyright protection that doesn’t extend to clothing (Scafidi says “paint on canvas or ink on paper is not that different from dye on fabric when you analyze it from a graphic perspective,”) Feral Childe may actually have a case against Forever21.
Could this be the straw that breaks the proverbial camel’s back? Very possibly. But the fact remains that as a fast-fashion retailer, Forever21 is at the top of its category, and at this point, it’s clear it won’t let something as trivial as a lawsuit stand in the way of its success.