"Didn't even want to post this on my feed cause it looks ugly but I'm so mad," Luci Wilden wrote on Instagram on Jan. 10. "[Fashion Nova] have ripped off my 'Skin Out' dress DETAIL FOR DETAIL. I designed the green version of this in 2016 [and] this color in 2017. They've mass produced this with a retail price of [$40]!! That makes their production price around $13, meaning whoever crocheted this was paid less than $1 per hour. Not only are they stealing my design but they're using it to exploit people and profit from it which is the opposite of what [Knots & Vibes] stands for!"
Wilden, who started Knots & Vibes in 2016, first learned of the suspicious similarity in design via another crochet-centric Instagram account she follows, who posted the Fashion Nova picture as inspiration. "I asked them where did the image come from and they told me Fashion Nova, so it's a total coincidence that I came across it, since I've never shopped with them before," she says. (The Fashion Nova version no longer appears to be for sale on the website.)
Wildren is self-taught, making everything and producing all ancillary photoshoots and content herself. And though her designs have been worn on artists including Ella Eyre and AlunaGeorge and featured in countless magazines, such as Hunger, Clash and Notion, Wilden says it has been difficult growing her business due to the fact that she refuses to have the manufacturing of her pieces outsourced to Asia.
"Many of my pieces can take eight to 10 hours to make by hand, so outsourcing the work becomes problematic if you're determined to pay a fair wage," she says. "If I was to outsource the work and pay a fair wage, I would have to raise the retail prices substantially, making it a more premium/luxury brand, something that I don't want to do."
Beyond that, Wilden intends to use her brand as a platform to bring awareness to issues affecting Jamaica and the Caribbean. In December, for instance, she provided crochet workshops for teenage mothers in Kingston, explaining that the materials and tools she gave them were funded by selling her crochet chokers. "One hundred percent of the retail amount went to the cause," she says.
Wilden reached out to Fashion Nova to gain a better understanding of the situation and received an email back from "Sara❤️," a Fashion Nova Customer Care specialist, who wrote: "Kindly note that Fashion Nova has different vendors all over the world and they are the ones who get to make the outfits we post on our website. I sincerely apologize for the inconvenience."
In other words: Your design may have been ripped off by a vendor who we then bought it from, but that's not on us. A rep for Fashion Nova did not immediately respond to our request for comment.
"Unfortunately there's not much Wilden can do in this situation," Nakia D. Hansen, Trademark Counsel at Odegard Law, explains. "Fashion designs are notoriously difficult to protect. The law has declined to extend many of the protections available to other forms of art to fashion because lawmakers and courts by and large believe that the industry benefits from this type of competition," she says, citing Star Athletica v. Varsity Brands, a 2017 US Supreme Court ruling that stated that copyright affords "no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions."
According to Hansen, because one cannot copyright the shape of the dress, nor, say the particular shape of the cups or straps as those might be considered functional elements of the garment (to hold up your breasts) Wilden's dress is therefore ineligible for copyright protection.
"While I'm sure plenty of care and time go into creating the Skin Out dress, the design of striped colored fabric probably doesn't rise to the standard of 'sufficient creative expression,'" Hansen says. "Some designers look to design patents but they are very expensive and hard to get because your design must be new and not obvious, a high bar to meet in the area of fashion."
This is not Fashion Nova's first time of being accused of such design theft. Designer Jai Nice accused the brand of stealing her designs in July 2018, and in December, brand Riot Society sued Fashion Nova for copyright infringement. "Ultimately, there's not much stopping Fashion Nova and similar companies from ripping off smaller, original designers," Hansen says.
"What most people end up doing is stressing the care that goes into their designs and the quality of their manufacturing process so that customers who care about those types of things can choose to support creativity and ethical practices," she continues. "This is why you see designers take to social media with their grievances, because contacting the companies (who know there's not much that can be done to them) is almost impossible and the only time companies do give in is when public pressure is significant."
The bottom line, according to Hansen, is a troubling one: "Unfortunately, there will always be people who care more about getting it cheaply and fast, and that's why companies like Fashion Nova exist."