Forever 21 copies yet another designer, will likely escape liability

Independent designer, Marta Freedman, alleges that Forever 21 replicated her T-shirt design. Due to deficiencies in existing copyright law, the fast fashion retailer will likely maintain its current business practices and continue to escape liability at the expense of nascent designers.
February 3, 2017

There is an unspoken rule when it comes to purchasing clothing: Forever 21 will always have the knockoff.[1]  While most stores would take measures to avoid such a veputation, Forever 21 embraces it.  In fact, America’s 5th largest specialty retailer incorporates this very idea into its business plan.[2]

Since the company’s inception, various designers, including Anna Sui and Diane von Furstenberg, have sued Forever 21 over 50 times for copyright infringement.[3]  These suits, however, do not include the various independent designers who are unable to garner legal representation or file suit.[4]  Among the latter includes Marta Freedman, creator of popular Instagram account, Hot Girls Eating Pizza.[5]

In October, Freedman publicly criticized the retailer for allegedly copying her T-shirt design, which parodies Kanye West’s The Life of Pablo merchandise; Freedman’s shirt bears the words “I feel like Pizza” instead of “I feel like Pablo.”[6]  As for Forever 21’s version, it also reads “I feel like Pizza,” but in a slightly wider font and is army green instead of Freedman’s heather gray.[7]  Although Freedman does not plan to pursue litigation, she discussed with Nylon magazine her main reason for calling out the store: making consumers aware.[8]  “My T-shirt was made as a nod to Kanye, Forever 21’s shirt was made to make money . . . I’m lucky enough to have a full-time job in addition to running Hot Girls Eating Pizza . . . I really feel for those designers, artists, and collectives—whose artwork is their livelihood—that lose rent money over . . . a Forever 21 knockoff.”[9]

With such a well-documented and public history of infringement allegations, how has Forever 21 continuously managed to escape liability?[10]  Copyright laws exist to incentivize and promote innovation of science and arts for the benefit of the greater public.[11]  Whereas patents protect inventions, copyrights protect works of authorship such as books, movies, and computer software; patents protect ideas and copyrights protect expressions of ideas.[12]  In order for clothing to be eligible for copyright protection, the aesthetic elements of the article must be separable from its functionality.[13]  Since it is quite difficult to distinguish the form of clothing from its function, clothing designers are often left with only two possible legal remedies: a design patent (requires a showing of “new and non-obvious” utility) or trademark protection (requires recognizable reputation, continuous advertising, and widespread sales).[14]  Because of the difficulty associated with acquiring these remedies, fashion designers, especially nascent and independent designers, are generally helpless against knockoffs.[15]

Interestingly, due to the nature of the “fast fashion” industry, Forever 21 oftentimes is not aware it is supplying a knockoff to consumers, or so its representatives say.[16]  Jin Sook Chang, who founded Forever 21 with her husband Do Won Chang, and her buying team allegedly review 400 new pieces a day in order to meet consumer demand.[17]  Because of the high turnaround of merchandise, these buyers do not have time to investigate and ensure that each vendor is not replicating other label designs.[18]  In her 2009 testimony for Trovato’s infringement case against the retailer, Chang testified, “We simply trust the vendors, and then they manufacture [and supply] the garment for us . . . .”[19]  Due to this implicit trust, Forever 21 treats potential liability as a sunk cost of doing business.[20]

During the trial for Anthropologie’s copyright infringement case against Forever 21, then-Executive Vice President Larry Meyer addressed the company’s “extraordinary litigating history.”[21]  “The number of claims against us is relatively small compared to the number of items we sell. Now we have a process to ensure that our products do not violate the intellectual property rights of others,” he said.[22]  Other than “trust,” what is this exact process?  In an interview with The Guardian, Linda Chang, daughter of Do Won and Jin Sook Chang and Forever 21’s Marketing Manager, attempted to clarify what this supposed responsive measure is.[23]  “We’ve never settled . . . We’re not manufacturing goods ourselves and we’ve put legal procedures in place [to avoid breaching copyright],” she said.[24]  Despite her declaration, it seems that Forever 21 always settles; settlement is the retailer’s elusive protective measure for copyright infringement allegations.[25]

As the fast fashion industry continues to grow and outpace other affordable competitors, the demand for low-cost designer knockoffs will likely only worsen.[26]  Until copyright protection is easily extended to clothing, the works of both reputable and nascent designers will remain vulnerable against Forever 21’s replication.  As for Forever 21, the 4.4-billion-dollar empire will likely continue covering settlement costs and conducting business as usual.[27]


[1] See Susan Berfield, Forever 21’s Fast (and Loose) Empire, Bloomberg Businessweek (Jan. 11, 2011), http://www.bloomberg.com/news/articles/2011-01-20/forever-21s-fast-and-loose-fashion-empire (discussing Forever 21’s knockoff of Jeffrey Campbell boots); Why Knockoffs are Good for the Industry, NPR (Sept. 10, 2012), http://www.npr.org/2012/09/10/160746195/why-knockoffs-are-good-for-the-fashion-industry (referring to various Forever 21 “knockoffs”).

[2] About, Forever 21, http://www.forever21.com/Company/About.aspx?br=f21 (last visited Oct. 31, 2016); see Berfield, supra note 1 (“Of the various fast fashion chains, Forever 21 is the one who treats liability as a cost of doing business . . . Illegal copying has been incorporated into their business model.”); Do Won Chang, CEO of Forever 21, Slate (July 18, 2011), http://www.slate.com/articles/technology/top_right/2011/07/do_won_chang_ceo_of_forever_21.html (suggesting that Forever 21 sells items of “remarkable similarity to boutique goods” as part of its business plan); Soyoung Ho, Forever 21 Fortune, Forbes (Apr. 29, 2009), http://www.forbes.com/2009/04/29/billionaire-retail-forever21-korea-rich-09-wealth.html (discussing Forever 21’s litigation history as part of business); Jennifer Sauers, How Forever 21 Keeps Getting Away With Designer Knockoffs, Jezebel (July 20, 2011), http://jezebel.com/5822762/how-forever-21-keeps-getting-away-with-designer-knockoffs (“[T]hey've been caught so many times, . . . this is just part of their business strategy.”); Eva Wiseman, The Gospel According to Forever 21, The Guardian (July 16, 2011), https://www.theguardian.com/lifeandstyle/2011/jul/17/forever-21-fast-fashion-america (“Liability is one cost of producing such fast fashion . . . .”).

[3] See Anna Sui Corp. v. Forever 21, Inc., 2009 U.S. Dist. Lexis 33044 (S.D.NY. Apr. 17, 2009); Ho, supra note 2; Chavie Lieber, Forever 21 has an Identity Crisis—and It Works, Racked (Mar. 19, 2015), http://www.racked.com/2015/3/19/8253211/forever-21-retail-strategy; Danica Lo, Designer Sues, N.Y. Post (Mar. 29, 2007), http://nypost.com/2007/03/29/designer-sues/; Sauers, supra note 2; see, e.g., Express, LLC v. Forever 21, Inc., 2010 U.S. Dist. Lexis 91705 (C.D. Cal. Sept. 2, 2010); H&M is Suing Forever 21 for Copying, Fashion Law (Sept. 29, 2015), http://www.thefashionlaw.com/home/hm-is-suing-forever-21-for-copying; Véronique Hyland, H&M’s Suing Forever 21 for Alleged Copying, N.Y. Mag.: The Cut (Sept. 29, 2015), http://nymag.com/thecut/2015/09/hms-suing-forever-21-for-alleged-copying.html; Charlie Lankston, Spot the Difference: Forever 21 Under Fire After Selling a $30 “Knockoff” of $500 Mansur Gavriel Bucket Bag, Daily Mail (Nov. 11, 2014), http://www.dailymail.co.uk/femail/article-2830483/Spot-difference-Forever-21-fire-selling-30-knockoff-designer-Mansur-Gavriel-s-500-bucket-bag.html.

[4] See David H. Faux, Elite Knockoffs and Nascent Designers, 1 N.Y.U. Intell. Prop. & Ent. L. Ledger 6, 8-13 (2009) (arguing that copyright law needs to bolster protection for nascent designers because they do not have the means to pursue claims); Julia M. Rodriguez, Another Artist Accuses Forever 21 of Ripping Off His Work, Care2 (Oct. 1, 2015), http://www.care2.com/causes/another-artist-accuses-forever-21-of-ripping-off-his-work.html (suggesting that Forever 21 targets independent artists because “these creators rarely have the means to hire a lawyer or undertake a lengthy legal battle.”); see, e.g., Bethany Lindsay, Forever 21 Accused of Copying Richmond Company's Sweater Designs, Vancouver Sun (Jan. 7, 2015), http://www.vancouversun.com/life/fashion-beauty/Forever+accused+copying+Richmond+company+sweater+designs/10706898/story.html (independent designer Brian Hirano); Stephanie McNeal, Forever 21 Is Being Accused Of Stealing an Artist’s Design for a Crop Top, Buzzfeed (Sept. 29, 2015), https://www.buzzfeed.com/stephaniemcneal/forever-21-design-claims?utm_term=.ilyBwo7Ve%23.etO7GRXe0 (independent designer Sam Larson); Lauren Tuck, Forever 21 Knocks Off Indie Designer with “Smart & Pretty” Sweatshirt, Yahoo: Style (Aug. 9, 2016), https://www.yahoo.com/style/forever-21-knocks-off-indie-designer-with-smart-pretty-sweatshirt-200729624.html (independent designer Emily Oberg).

[5] See Hayley Fitzpatrick, Forever 21 Accused of Ripping Off Another Designer — Again, Yahoo: Style (Oct. 24, 2016), https://www.yahoo.com/style/forever-21-accused-of-ripping-off-another-designer-again-213013470.html; Alyssa Hardy, Forever 21 is Being Accused of Copying an Indie Brand's T-Shirt Design, Teen Vogue (Oct. 25, 2016), http://www.teenvogue.com/story/forever-21-is-being-accused-of-copying-an-indie-brands-t-shirt-design; Jenna Igneri, Did Forever 21 Just Knock Off Hot Girls Eating Pizza?, Nylon (Oct. 24, 2016), http://www.nylon.com/articles/hot-girls-eating-pizza-forever-21.

[6] See Fitzpatrick, supra note 5; Forever 21 Under Fire for Copying This Kanye West Merch Copy, Fashion Law (Oct. 25, 2016) (explaining how Marta Freedman is able to parody Kanye West’s merchandise), http://www.thefashionlaw.com/home/forever-21-under-fire-for-copying-this-kanye-west-merch-copy; Marta Freedman (@h0tgirlseatingpizza), Instagram (Oct. 18. 2016), https://www.instagram.com/p/BLut_Hijk8k/.

[7] Compare Marta Freedman (@h0tgirlseatingpizza), Instagram (Aug. 31, 2016), https://www.instagram.com/p/BJx5fUsAQA with Marta Freedman (@h0tgirlseatingpizza), Instagram (Oct. 18. 2016), https://www.instagram.com/p/BLut_Hijk8k/.

[8] See Igneri, supra note 5 (“While Freedman doesn’t plan to reach out to Forever 21, explaining to me that she doesn’t think there’s anything she can do, she still wishes to make consumers aware.”).

[9] Id.; see also Faux, supra note 4, at 8-13 (arguing that nascent designers are most affected by knockoffs).

[10] See Berfield, supra note 1 (stating that despite an extensive litigious history, “[t]he Changs, for the record, have never been found liable for copyright infringement.”).

[11] See U.S. Const. art. I, § 8, cl. 8 (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”); see also Faux, supra note 4, at 10-11 (“[T]he purpose of copyright law, then, is not to reward the individual artist for her contribution, ‘not to reward the labor of authors, but ‘to promote the Progress of Science and useful arts.’ As such, one significant component of copyright protection is that it lends itself to public benefit rather than market efficiency.”); Can You Copyright Clothing Designs?, New Media Rights (Nov. 26, 2011), http://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs (discussing generally how copyright law applies to fashion); Why Knockoffs are Good for the Industry, NPR (Sept. 10, 2012), http://www.npr.org/2012/09/10/160746195/why-knockoffs-are-good-for-the-fashion-industry (discussing what copyright law is designed to protect).

[12] Trademark, Patent, or Copyright?, U.S. Pat. & Trademark Off., https://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright (last visited Oct. 31, 2016).

[13] See Galiano v. Harrah's Operating Co., 2004 U.S. Dist. LEXIS 8265 (E.D. La. 2004) (ruling that the artistic design elements of clothing must be separable from the utilitarian aspects in order to be copyrightable); see also Sauers, supra note 2 (“The thing is, textile prints are subject to copyright. A garment's overall design is not.”).

[14] See Faux, supra note 4, at 9-13 (discussing the difficulties associated with obtaining trademark protection for fashion designers); Can You Copyright Clothing Designs?, New Media Rights (Nov. 26, 2011), http://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs (discussing the legal remedies for fashion designers for knockoffs); Why Knockoffs are Good for the Industry, NPR (Sept. 10, 2012), http://www.npr.org/2012/09/10/160746195/why-knockoffs-are-good-for-the-fashion-industry (discussing the difficulties associated with obtaining a patent for a fashion design).

[15] See Can You Copyright Clothing Designs?, New Media Rights (Nov. 26, 2011), http://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs (discussing why generally clothing is not copyrightable); Amy Odell, Fashion Caucus Determined to Copyright Clothing Designs, N.Y. Mag.: The Cut (May 4, 2010), http://nymag.com/thecut/2010/05/fashion_caucus_determined_to_c.html (“‘Counterfeits with pirated designs and fake labels are absolutely prohibited by law, but it doesn’t provide any protection for the same fashion design when the pirates omit the label[.]’”); see also Amy Odell, Trovata’s Suit Against Forever 21 Ultimately Has No Effect on Knockoff Regulations, N.Y. Mag.: The Cut (Oct. 13, 2009), http://nymag.com/thecut/2009/10/trovatas_suit_against_forever.html (covering Trovato’s decision to end litigation with Forever 21 over alleged copyright infringement); Sauers, supra note 2 (discussing generally how Forever 21 continues to be the subject of copyright infringement lawsuits and found to be not liable.).

[16] See Felipe Caro & Victor Martínez-de-Albéniz, Defining and Measuring Fast Fashion, UCLA Anderson Supply Chain Blog (Apr. 15, 2014), http://blogs.anderson.ucla.edu/global-supply-chain/2014/04/defining-and-measuring-fast-fashion.html (explaining the high turnaround of merchandise for fast fashion sellers); Do Won Chang, CEO of Forever 21, Slate (July 18, 2011), http://www.slate.com/articles/technology/top_right/2011/07/do_won_chang_ceo_of_forever_21.html (“The head office works with contractors who design and churn out the company's teen-friendly gear—designer knockoffs, inexpensive staples, and lots of them. The process from sketch to store often takes days, not weeks or months.”); Wiseman, supra note 2 (explaining that because the buying team reviews 400 new designs a day, Forever 21 can only trust its suppliers to not copy other designs); Jim Zarroli, In Trendy World Of Fast Fashion, Styles Aren't Made to Last, NPR (Mar. 11, 2013), http://www.npr.org/2013/03/11/174013774/in-trendy-world-of-fast-fashion-styles-arent-made-to-last (discussing the issues associated with meeting demand and high volume production in the fast fashion industry).

[17] Wiseman, supra note 2.

[18] See Berfield, supra note 1 (explaining that because the buying team reviews 400 new designs a day, Forever 21 can only trust its suppliers to not copy other designs); Wiseman, supra note 2 (same).

[19] Berfield, supra note 1.

[20] See id. (“Of the various fast fashion chains, Forever 21 is the one who treats liability as a cost of doing business . . . .”).

[21] Id.

[22] Id.

[23] Wiseman, supra note 2.

[24] Id. (emphasis added).

[25] See Berfield, supra note 1 (discussing various Forever 21 settlements); Sauers, supra note 2 (discussing various Forever 21 settlements and stating “all [Forever 21 does] is settle”); see, e.g., Anna Sui Corp. v. Forever 21, Inc., 2009 U.S. Dist. Lexis 33044 (S.D.NY. Apr. 17, 2009) (settlement agreement).

[26] See Marc Bain, One Chart Shows How Fast Fashion is Reshaping the Global Apparel Industry, Quartz (Nov. 2, 2016), http://qz.com/825554/hm-zara-primark-and-forever-21-one-euromonitor-chart-shows-how-fast-fashion-is-reshaping-the-global-apparel-industry/ (showing how fast fashion companies are outpacing competitors); Nia Porter, Are High-Fashion Copies Actually Legal?, Racked (Aug. 18, 2016), http://www.racked.com/2016/8/18/12428004/fast-fashion-copy-sites-legal-knockoff (discussing how knockoffs in the fast fashion industry are on the rise).

[27] #96 Forever 21, Forbes: Am’s Largest Private Cos., http://www.forbes.com/companies/forever-21/ (last visited Oct. 31, 2016).