Late 18th century English writer and collector Charles Caleb Colton once famously declared that “Imitation is the sincerest form of flattery,” but today, imitation isn’t always perceived as positively as it could have been back then, and could even result in a case of a public outcry or a lawsuit filed against you. The recent case of London-based fashion label KTZ being subject to plagiarism is an example of this. Last week, news broke out that the label’s Autumn/Winter 2015 collection included a sweater with an imprinted design that was apparently taken from Aua, one of the last Shaman of the Canadian Inuit. Salome Awa, the great-granddaughter of Aua, expressed her disapproval of this to multiple news sources, stating that it was violating and disrespectful of a traditional, sacred design and of her great-grandfather.

KTZ in turn removed the sweater from all of its stores and sent an apology to Salome, who then responded that she was disappointed not to have been given a financial compensation. But, could she even claim copyright on the design in the first place? Was it necessary for KTZ to take action in the way they did? Could they have been taken to court over being inspired by an ancient photograph? What does this mean for young designers whose collections may be influenced by an artefact in a museum?

We spoke to Hugh Devlin, fashion’s family lawyer, who was also featured in our third issue giving advice on copyright laws for young designers. Here, Hugh gives us his take on the entire situation from both a legal and cultural perspective.

1granary-hugh-devlin1 Granary: What do you think about the whole situation?

Hugh Devlin: It’s a very difficult decision to be categoric about, because there are a number of different heights of intellectual property that one can create, and the first one which happens automatically is copyright. For example, look at the recent collection created by Isabel Marant, and the embroidery that was included in it. I don’t know if this is correct or not, but it was reported that she had registered the embroidery design. If you had created something meaning that it was novel — that gives you copyright in that design. You can then give yourself more rights, if you want, by registering that design; and that’s simply enforcing your rights against a third party.

It was suggested that Isabel Marant may have registered the embroidery design that was originally created by Mexican tribes for many decades. And it’s also been suggested again, I have no idea if this is correct or not that she then tried to enforce that registration against the originators of the design. Turns out, that’s not the case, so I suspect there are quite a lot of Chinese whispers going on about it. Nevertheless, if something is already out in the market, then in theory it should not be possible for you to register that design. In terms of the KTZ design, it’s an interesting one, because it is clearly referencing an original, but it’s not a direct copy.

But the similarities are quite evident.

You can see exactly what it’s based on. In some respect, one could have a very similar conversation about the work of Jean Paul Gaultier or John Galliano in the past. Both of whom have referenced minority ethnic groups, and the simple base of it is that if something is a traditional design, the likelihood is that the copyright in it has expired anyway.

In that sense, does it mean that Salome Awa was in no position to claim right of the design?

Actually, probably not. Because ordinarily, copyright laws last 70 years. It varies from country to country, but 70 years is the time agreed. 

That makes everything that Salome demanded, such as monetary gains, redundant, doesn’t it?

I think that she probably doesn’t have right to that. This is more common in the music or publishing industry, but it’s possible to extend the right for longer than 70 years. There’s no question whether she had done that in this particular case, and actually, there wasn’t any suggestion that her family owns that design. One can understand why she was upset about it, but looking at what her rights probably were, I think that she would have had a very hard task in trying to force anything against KTZ.

Don’t you think it’s more often a case of intellectual property rights, where someone doesn’t necessarily have any of their rights recorded, and get upset upon what one could call ‘theft’?

Well, the particular element of this is quite esoteric, in a way. I mean, I have no real knowledge of what Inuit fashion looks like. It may well be that there are 30 or 40 men wandering around with similar coverings at the same time as her ancestor. If we take things somewhat closer to home, many designers will take inspiration from traditional Scottish knitwear. The interesting thing about that, is that the tradition of those designs were partly linked to a specific family. They were very often used for families where the men were sailors, and it was a means of identification if someone drowned you could look at the pattern of a sweater and know the surname. It’s similar to tartans being linked to a particular class. Now, there’s never been a suggestion that a family takes issue with a French or Italian fashion house in spite of their use of an argyle patterned sweater, and that’s partly down to the fact that copyright on the traditional design, if there was any in the first place, has long expired. Whereas, if you look at the Isabel Marant story in particular, it becomes more interesting, as the rumour was that Isabel Marant was trying to prevent the tribe from using their own design. Now, that gets much closer to the whole Ralph Lauren Polo issue, where having established the Polo brand as his logo, Ralph Lauren is preventing polo clubs from using it. So, he’s basically attacking the inspiration for his whole brand.

The circumstances of somebody appropriating someone else’s design, and then trying to prevent the original designer from using it are very rare for obvious reasons. In most circumstances, the originator is likely to be able to win in any case, if they take out the copier. The difficulty for a lot of young designers is, irrespective of what your case is, that it can be very expensive to do anything about it. There’s one place that is always worth looking at if you find yourself being copied, and that’s Germany. If you can demonstrate that a person has copied your design, and has been selling it in Germany, the country has quite an interesting and cheap way of preventing that from happening. It’s basically a lot cheaper and quicker to take action in Germany.

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Left: the design by KTZ, right: the Inuit shaman in traditional dress

“The great-granddaughter of the Inuit couldn’t have copyrighted the design of the sweater, because she didn’t create it.”

Why is that?

They’ve got a particular mechanism within their legislation which allows you to quickly prevent somebody from using your design, and then you can enforce that court ruling. So that’s something to bear in mind, but in many cases it is more expensive to enforce than any compensation you might get paid.

I’ve got one situation at the moment where a very big house has copied a printed design, and I actually believe it was innocently done, where they bought said printed design from a fabric supplier and didn’t realise that the fabric supplier had taken it out of someone else’s archive. Now, in that particular case it was so obvious that it was a direct copy, that the house in question said: “Of course, we’ll pay you a fee in ratio to the amount of products we sell.” It’s quite unusual for somebody to be as cooperative as that. The reality is, most people will tweak something a little bit and think that’s enough.

Picking up on that, I was just wondering if it is okay for designers to alter something slightly?

It depends. I don’t know where this came from, but for years I’ve been hearing designers say: “If I change certain elements of it, it’s fine.” That’s rubbish. The simple thing is, if you look at the original design and you look at the tweaked version of it, and the latter is likely to confuse somebody who’s buying it, then it’s not okay.

The very frustrating thing for all of the precedents, is that while in theory the law might protect you, in practice, it’s expensive to get that protection. Also, being very clear about terminology here: you don’t need to copyright your designs. It happens automatically upon creation. Which is why enforcing copyright is more difficult, because you have to prove to the court that it’s original. Most people don’t create with the intention of having to be able to prove that creation process. So, a lot of people won’t retain information that will help in proving they were the creator.

The great-granddaughter of the Inuit couldn’t have copyrighted the design of the sweater, because she didn’t create it. The issue is that when somebody creates something and they automatically have copyright in that design, that is then an asset which can be passed on. It can be left to their heirs in the same way their library or their house can be left. The problem is that the great-granddaughter probably wasn’t able to prove that she had any residual rights in that design.

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Salome showing the picture of the ‘stolen design’

“As somebody who is most often trying to defend originators, designers, from being copied, I think that in this particular case, it probably was not a copyright issue. It was a cultural issue more than a design issue.”

So, from KTZ’s perspective, do you think it was necessary to publish an apology and take the garment out of their collection?

I don’t think it was necessary, to be honest with you, on the basis of what I’ve seen. If there was a suggestion that culturally anyone other than this woman’s great-grandfather or his descendants wearing that design was offensive, then that’s a slightly different issue. In the past, Gaultier and Galliano would have been criticised by wearing orthodox Jewish clothing, or by including it in their collections. Sometimes that’s because they’ve included the references with designs, which the original group feels are immodest. Or, there have also been examples in the past where quotes from the Quran have been used on a sweatshirt in a way that Muslims find offensive. Looking at the very little information we have about KTZ’s usage of the design, they were probably perfectly entitled to use that design if it was no longer under copyright.

I suppose from Salome’s perspective, her argument is that her great-grandfather and possibly his peers designed this sweater, and each symbol on the sweater represented something that they had done that was particularly sacred or symbolic to them, and KTZ appropriating it fashionably was seen as reducing or disrespecting her great-grandfather. So we can see why she’s upset, but based on the laws, there’s really nothing to say that KTZ could not have used it.

I think that the apology was not so much to do with the copying, and more to do with any disrespect that may have gone into the copying. I completely understand that. But as somebody who is most often trying to defend originators (designers) from being copied, I think that in this particular case, it probably was not a copyright issue. It was probably much more a respect issue that was subject of both discussions. I’m just not terribly sympathetic to the copyright discussion. What it was really being condemned for, was a lack of understanding of the reference to tradition within the Inuit people. The fact that he was a holy man within the Inuits was really the story here. I think that the difficulty is that everything became confused in the story. The fashion press have been looking at it from a more design perspective, and actually it was a cultural issue more than a design issue. By all means look at traditional design, but before you adopt it completely, do a bit more research into whether there are any cultural issues surrounding it. Looking at the way the KTZ story has been reported: if you read between the lines, it is not the idea of the design being copied that is upsetting, it’s the idea of somebody making money out of a design which has nothing to do with them culturally, and which may have specific religious meanings which are only appropriate to people who originated from it.

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“By all means, look at traditional design, but before you adopt it completely, do a bit more research into whether there are any cultural issues surrounding it.”

That seems like a justified reasoning.

Well, it’s justified if it’s real.

Clearly there are a lot of gaps to be filled in with regard to this situation. Do you think it would have been possible for Salome to take this issue to court?

No. If she could show that she had a right in the design, then she might be entitled to the profit which KTZ has made from that design, but there’s no suggestion that she can show that. Certainly in the United Kingdom  things could be a little different in the United States there are no ‘punitive damages’. So there’s probably no reason for her to take action against KTZ, which is why she’s gone public.

I think we can conclude from here that if this really were to go on, a lot of digging would need to be done, even though KTZ have already retracted the garment from their collection.

I can understand why they did it, but they have very honourably said: “We’re really sorry to have upset anyone, it’s not what we intended, and given that it’s the product that’s causing the upset, we’ll withdraw it.” But I don’t think that they had any legal need to do so on the basis of the information that’s in the public domain.

They’ve really dealt with the situation in an honourable and respectful way.

Yeah.

Great, I think that’s a good way to round things up. Thank you so much for your time Hugh!

Words by Alysha Lee

Image sources: the Internet

Portrait of Hugh Devlin by Ki Yan Yoong for 1 Granary Issue 3

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