From calico to catwalk: Addressing the UK’s enduring issue of fashion piracy

Abstract

1. Introduction

While the famous quote, oft attributed to Oscar Wilde, that ‘imitation is the sincerest form of flattery’ seems final on the matter, the debate as to whether the fashion industry benefits from copying has recently been revamped. In part, this is due to the rise of the internet, social media and fast-fashion, which have caused many to assume that piracy in the fashion industry is a product of the digital age and a new threat to creative expression.¹ But fashion ‘dupes’ have a much longer history than most of us realize. English designers who created calico clothes in the 18th and 19th centuries likewise complained of piracy causing problems, which were emotively described at the time as novel and unmatched challenges that threatened to ruin the industry.² What is interesting about this is that there are significant parallels between the issues designers face in protecting fashion designs now and those faced over 200 years ago, despite both groups operating in a vastly different culture and age. A review of past literature, including evidence the calico printers gave to Parliament at the time, shows that, in fact, many of the issues faced today are not novel at all.³ This creates a quandary: if these issues are not new, then why can we not solve them? The answer is not immediately clear, with the issue of design law in particular having puzzled academics, the judiciary and parliament alike for hundreds of years. Even as recently as 2012, former Court of Appeal judge, Sir Robin Jacob, commented that: ‘Now, nobody in their right mind would have such a complicated system. But does it matter? That is something I do not know the answer to. How much is it really affecting designers, one way or the other? I do not know the answer to that, and I do not think anybody does.’⁴

Although attempts have certainly been made since 2012 to improve the design system, the regime remains complex, and the views of those affected under-explored and therefore relatively unknown.⁵ So, while many of the issues relating to the UK design system seem to remain, this article contains a brief analysis of the calico printing industry as a paradigm example of the tensions between copyists and originators that have existed for centuries. This intends to shed some light on what it is about the fashion industry, in particular, that means issues have dogged the system of protection since its inception. The observations that will be made support the argument of Bently and Sherman, that much which we assume is novel and unique about our current environment and its interaction with IP law is not new at all.⁶ Instead, the difficulties experienced by fashion designers today can be seen as examples of the law working through a series of on-going problems that it has grappled with for many years. However, that is not to say these issues cannot be improved. By exploring the historical issues relating to fashion piracy, this article intends to illuminate which obstacles to receiving effective redress are implicit in the notoriously difficult area of fashion and, more importantly, which could be improved. In doing so, it is intended to give food for thought as to how the UK could adapt or change its legislation, and finally support designers being able to effectively enforce their rights.

2. Historical background

A. Calico, fashion and piracy

When thinking about fashion today, calico is certainly not likely to spring to mind.⁷ But in the 17th century the arrival of calico, an exotic Asian fabric, caused frenzy among consumers, rich and poor.⁸ At the time, it sparked a craze because it allowed growing ranks of consumers to buy a ‘cornucopia of textiles, in colors, patterns, and qualities’.⁹ Colourful and washable, capable of being printed on, and cheaper than wool and silk, calico allowed fashionable patterns to spread across English society and is largely recognized as being the first mass fashion trend. Its sudden popularity with English society was described by a pamphlet writer in 1727 as ‘On a sudden… we saw all our women, rich and poor, cloath’d in Callico, printed and painted, the gayer and the more tawdry the better.’¹⁰

So popular were these fashionable Indian imports, that consumers were seen to be ditching English wool and silk in favour of calico. This led to attempts to protect these domestic industries, with Parliament petitioned to ban calico. In 1657, one Bristolian merchant who supported this ban criticized the frenzy for calico in Britain at the time, noting that ‘now few think themselves well dressed till they are made up in Calicoes… and indeed it will be a hard matter to put them out of this Fancy.’¹¹ The merchant went on to warn that the imports were becoming so damaging that if they continued they would completely ‘destroy’ Britain’s wool manufacturers.¹² Stern cautions like this from the anti-calico campaigners took favour with Parliament, which agreed to ban the importation of calico in 1700.¹³ Further acts were passed, banning the sale and even wearing of most cotton cloth from 1720 until 1774.¹⁴

When these bans were eventually repealed, the British calico industry, and thereby the fashion industry, expanded enormously.¹⁵ This progress was aided by new machinery developed in the industrial revolution. With machines able to take over tasks which had previously been done laboriously by hand, the domestic production and tailoring of clothes was transformed in Britain. It is interesting to note that one of the key motivations for the development of these innovations was the pursuit of British traders and innovators to produce cotton that matched the quality of imported Indian calico.¹⁶ But with fashion, came piracy. Not only did inventions like the cotton gin and automated weaving machines make the mass production of printed calico possible. It also permitted a new ease of copying of the patterns printed on this cloth and worn by stylish women. Prints sold in London shops and dressmakers were at particular risk of being copied, due to the capital’s fashionable reputation, it being considered by many to be the only place which could set the styles for 18th century Britain.¹⁷ This resulted in cotton factories in the North of England increasingly copying patterns from the South.¹⁸ The resultant ‘design piracy’ led to an unlikely coalition of politicians, printers, and textile manufacturers, who campaigned for copyright protection of these prints. In this way, calico played a large role in the creation of both a modern English fashion industry, and the development of a pre-modern IP regime to protect fashion designs.

B. The copyright battles

At the time when these fashionable prints began to be mass copied, the concept of IP protection was underdeveloped, meaning that designers and printers had little recourse against those who copied their designs. The first act capable of protecting fashion products was the 1787 Designing and Printing of Linen Act,¹⁹ which offered 2-month copyright protection to the ‘Designers, Printers and Proprietors’ of new and original patterns which were printed onto calico. Protection was extended to 3 months in 1794, but all further bills intended to extend protection failed until 1839, when two new acts were passed. The first, the Copyright of Designs Act,²⁰ extended the protection of the Calico Acts to fabrics other than calico, such as wool and silk. The second, which became known as the Designs Registration Act,²¹ increased the term of protection from 3 to 12 months for the prints on woven fabrics, but it did not apply automatically like the acts before it, and instead required designs to be registered as a pre-condition of protection.

It soon became clear that the Acts of 1839 were far from perfect, and there were allegations that copying was continuing largely unabated.²² This resulted in a Select Committee being elected in 1840 to consider whether protection should be expanded.²³ The acrimonious evidence given by calico printers to this Committee is illuminating of the opinions on copying in the fashion industry at the time. While some printers saw no issue with it, or even spoke of piracy in positive terms, others told of damaging and long-lasting consequences, such as reduced profits, market position and even ruined reputations. These effects were said to have been exacerbated by the increased ease and speed with which copyists could knock-off popular patterns. This was explained by calico printer, Mr Schwabe, who said that, while the rate of designing remained the same, the rate of production had rapidly increased, meaning that pirates could ‘overtake’ him, and had a much greater advantage.²⁴ Describing the impact of piracy in 1841, Committee member Mr Tennent stated that while 50 years before, three months protection may have been sufficient, as ‘every process was slow’, in recent years copyists had been taught to engrave their rollers by a ‘flash of lightning’.²⁵

Although this was clearly an exaggeration, the development of mechanized printing processes undoubtedly meant pirates could copy patterns in a faster, less labour intensive and cheaper way. Moreover, the improvements in technology also permitted copyists to produce better-quality replicas. While in the past, Mr Warwick, a producer of fine women’s dresses, stated poor copies of his product did not bother him, he noted that more recently the copyists were able to produce high-quality replicas of his designs, which had seriously begun to affect the sales of his originals.²⁶ But it was not just high-quality replicas which challenged printers and damaged their reputations: copyists were also accused of undercutting the market, by copying successful patterns on cheap and inferior cloths. These ‘low-class’ replicas were also said to reduce or halt the sales of the originals.²⁷ Mr Schwabe commented that, when poor imitations appeared, the sale of his original patterns was ‘nearly or quite stopped’.²⁸ Echoing this, Mr Warwick commented that as a result of the imitations being ‘so near’ and the inferiority of the quality ‘so great’ that people were no longer interested in buying the real thing.²⁹

The printers also commented on their struggle to enforce their rights when they were copied. The cost of litigation was a frequently complained feature of the law, as it meant enforcement was simply out of most people’s reach, whether they had a strong case or not. This was reflected in the comments of Mr Brooks, a calico printer giving evidence to the committee who stated copyright protection was ‘a law for the rich printer and not for the poor’ and so expensive to fight that the latter were often forced to settle by compromise.³⁰ The other complaint regarding the existing law was that the expense of registering designs (2 shillings per design) would have been enormous for printers like Mr Potter, who produced 2000–3000 patterns a year.³¹ This complaint was not just restricted to the cost of registration but also to the ‘very great deal of trouble in attending to register them, where there are so great a number of patterns as we produce’.³² There was also financial risk involved, given that printers wanting longer protection were forced opt for the 12-month registration system, and had to register all their designs without yet knowing which would be successful, and which would not.³³

Among the complaints about the legislation were also those from printers who did not think any law at all was beneficial, it being a hindrance to the profitability and success of the industry. Traders like this who were against further, or indeed any protection, presented a multi-pronged case to the committee to try to prevent the passing of the bill. This included: denying they were copied; denying much copying was going on; and in any event, arguing that copying did no harm.³⁴ While imitation was freely admitted to, copying was denied and even pro-copyright printers found it hard to precisely explain where the line should be drawn between the two.³⁵ This uncertainty about ‘original’ design was seized upon by the opponents to protection who argued with flourish that there was no such thing.³⁶ Instead, they suggested that because millions of patterns had been created, it was simply impossible to ascertain if a pattern was new and original.³⁷ According to Mr Lee, this meant an entirely innocent person could be liable to legal proceedings in every pattern he cut.³⁸ While independent creation was (and remains) a defence to copyright infringement, those against extending protection pointed out it was a difficult and uphill task to prove a design had been created independently.³⁹ The consequence of this, Mr Lee warned, was dire enough to deter people from entering the calico trade, and to potentially cause those already in the trade, like himself, to withdraw.⁴⁰

The other argument that opponents of copyright extension ran was that being copied was a positive thing because it could attract more business. The copy and not the original, it was argued, was what conferred value in the marketplace. Mr Brooks, who had been engaged in the trade for 30 years, even claimed he had tried to pay a well-regarded firm to copy him. He explained that being copied like this would have exalted his name, and benefitted his business because printers ‘thrive better under people copying us than otherwise’.⁴¹ Using the metaphor of a spring in a hill that empties and refills, Mr Brooks argued that being copied was advantageous to printers because it meant they had to invent, and thereby sell more.⁴² This sentiment was repeated by Mr Kershaw who, when asked what he did when he was copied, simply responded ‘get fresh patterns’.⁴³

Such divergent views from the calico printers highlight the difficulties that were faced by law makers when deciding whether to extend protection further. On the one hand, there was a desire to protect original and innovative designs; on the other, lawmakers faced increasing pressure to respect emerging legal and economic frameworks which valued market competition and the protection of consumers from monopolistic and anti-trade practices. While the Committee did approve the bill, leading to the passing of the 1842 Ornamental Designs Act,⁴⁴ the balancing of these interests was and remains a challenge for modern lawmakers, as will be now be shown.

3. Contemporary issues in the fashion industry

Since the 18th century, fashion products have received increasing IP protection. Today, the UK’s legal system provides fashion designers with a broad range of rights to rely on should their designs be copied. Whilst copyright and trade mark law provide some protection, the most useful rights for fashion are generally considered to be unregistered and registered design rights.⁴⁵ This is because UK copyright operates with a ‘closed list’ system, where—in order to be protected—a work must fit into one of the eight categories contained at section 1 of the Copyright Designs and Patents Act 1988. As fashion does not fall neatly into any of these categories, it is rarely protected. In contrast, design rights offer broad protection, including severe criminal penalties for the intentional theft of registered design, of up to 10 years imprisonment and/or an unlimited fine.⁴⁶ Fashion is able to receive this level of protection because of the UK’s expansive design rights regime, which covers a wide range of creations, from architectural design to toys. However, whether UK fashion designers actually benefit from such strong protection, it is not something which gets much attention. When regime change is considered, as design law does not exclude or separate areas based on subject matter, all areas are considered. Unfortunately, this has contributed to lawmakers having a distinct lack of focus on fashion, which is likely exacerbated by the fact that it is a notoriously difficult area to protect, with a short shelf-life and a confusing culture of acceptable copying, such as ‘homage’, which makes drawing the line between inspiration and piracy challenging.

What little research that does exist into copying in the fashion industry reveals that designers in the UK continue to face numerous challenges when attempting to protect their products. The most significant—and arguably the hardest to combat—being the rising popularity of fast fashion. Fuelled by Instagram and TikTok, new trends like Y2K, quiet luxury and Barbiecore are being minted on a monthly or even weekly basis. For those wanting to be seen as ‘on-trend’, buying into them is essential—often in the form of cheap, low-quality clothing—which can just be thrown away when the next trend comes along. This model for ever faster and cheaper fashion has been exploited by online-only retail platforms, such as Shein and Temu, which are alleged to use evolutionary business models to provide increasingly rapid fashion options. This, in turn, is said to cause substantial disruption in the market. According to a US lawsuit filed in 2023 by three fashion designers, Shein uses a ‘secretive algorithm’, which is not only able to determine emerging fashion trends but can also link them to a corporate structure, including a manufacturing and fulfilment scheme.⁴⁷ This lawsuit claims that this technology allows them not only to locate popular fashionable items, but also quickly make cheap copies and offer them for sale everyday—in the thousands.⁴⁸ Although a US-based case, UK designers are just at risk of being copied—with many emotively telling of their reactions when seeing their designs displayed on Shein’s website, for a fraction of the price.⁴⁹ Explaining what happened when one of her designs was copied, independent designer Emma Warren stated: ‘It’s literally exact, they’ve just taken it and put it on something. I think they’ve printed it to make it a little cheaper I suppose. That’s fast fashion for you. It’s infuriating because they’re selling it for a third of the price as well’.⁵⁰

For designers like her, if they want to take action against copyists, then the perils of litigation remain—with complaints it is still lengthy, costly and hard to understand. According to research conducted by the UK Intellectual Property Office in 2022, ‘lone designers and small companies who cannot afford to employ legal representatives’ find it hard to understand and enforce the U.K. designs system.⁵¹ These findings are supported by academic research (first published in 2018), which investigated the views of emerging UK fashion designers on the risks of piracy and the design rights system.⁵² The outcome of this empirical research was described niftily in the paper’s title, namely, ‘An Expensive, Confusing, and Ineffective Suit of Armor’.⁵³ In it, the authors found that the emerging designers interviewed ‘lack knowledge of the rights available to them, and generally regard the current design rights as irrelevant to their firms’.⁵⁴ It damningly concluded that because of this, design rights were seen to be ‘better suited to large, or more established, firms which have the resources and opportunity to employ expert legal assistance’.⁵⁵

The modern criticism that litigation is a David and Goliath battle is therefore reminiscent of the situation faced by printers in the 18th century, when a copyist would still have ‘defended the action, though aware he was in the wrong, and relied on the strength of his purse to defeat his opponent’.⁵⁶ Today, as in the past, fashion remains a hierarchical business. Established designers and couture houses at the ‘top of the pyramid’ have the finances and in-house legal teams to tackle copycats, while smaller designers do not.⁵⁷ Compounding this issue is the complexity of the law, which means non-specialist users are unlikely to take on legal action without advice and representation, which can be extremely costly.⁵⁸ While these high costs may put off vexatious cases or those unlikely to succeed, it also undoubtedly means some victims of piracy never obtain justice simply because it is out of their financial reach. A recent UK case involving the alleged copying of 91 garment designs, one of the rare examples of fashion piracy being taken to court, shows just how lengthy litigation can be. Although a letter before action was sent on 19 April 2016, it took until 24 February 2021 to receive judgment.⁵⁹ The amount of time and expense involved in almost 5 years of litigation means enforcement is something most designers and fashion companies cannot even contemplate. This remains a cause for concern given it seriously impedes access to justice for emerging and independent designers.

Criticisms about the registered design system also continue to linger amongst fashion designers. Today, while registered rights last significantly longer, 25 years rather than 12 months, in the 2022 Call for views by the UK Intellectual Property Office (IPO), the UK Fashion & Textile Association confirmed that obtaining protection remains prohibitively expensive for fashion designers, noting that one of their members was quoted £850 000 to protect their IP, for just one collection.⁶⁰ Although the cost of registering a design is not high (£150 for up to 50 designs), when the time to prepare the applications is factored in, alongside the volume of applications needed, the amount can soon become significant. In addition, although designers are now given 12 months after a design is made public to decide whether to register it, this is often still not long enough to make an informed decision on its success and longevity. Burberry have commented on this issue, noting that: ‘While we do use the registered design system to protect longer life products such as fragrance bottle and packaging designs, surface patterns/logos, and the like, often we don’t know whether a particular fashion design will have longevity within the year grace period.’⁶¹ This is a particular issue in the fashion industry, when considering that clothes will likely have been shown on social media, trade shows or on catwalks months or even seasons before being made available for sale.

Alongside these concerns, modern fashion designers still face difficulties in deciding where the line should be drawn between copying and imitating. The fashion industry involves a long-established and indeed acceptable tradition of being inspired, referencing, and paying ‘homage’ to past or current leading designers. A notable example of this is Schiaparelli, a recently resurrected brand (which originally closed its doors in 1954), whose new designer Daniel Roseberry continually reuses the brand’s signature looks and motifs, which were created by the original designer Elsa Schiaparelli. Practices like this mean it can be challenging to judge what degree of copying is acceptable, and what is not.⁶² As noted in the research undertaken in 2020, UK fashion designers still struggle when assessing the independent creation of products, with one designer stating: ‘you can never say that [another designer] copied, because they might just have thought up the same thing.’⁶³ The same research also established that, like the calico printers before them, some UK fashion designers remain concerned about the damaging impact legislation can have on creativity. Reflecting this, one designer commented: ‘if you put too many rules then you start cutting all the creativity that people can have, because today—what are you going to launch?’⁶⁴

There are also the arguments (although admittedly largely in the USA) that copying is a paradoxically beneficial feature of the fashion industry. This position appeared frequently before the Committee.⁶⁵ So, while US academics Raustiala and Sprigman might think they introduced the concept of the piracy paradox in 2006, its premise actually appeared back in 1840.⁶⁶ The ‘paradox’ being the idea that the legal freedom to copy clothing designs actually helps, not harms, the fashion industry because copying speeds up the fashion ‘cycle’, meaning more garments are sold to consumers, and the incentive to create new clothes is enhanced.⁶⁷ However, while this argument retains some popularity, its orthodoxy is still based on a fallacious understanding of the fashion industry, because it simply does not apply to emerging fashion designers or small companies. Furthermore, although it has the potential to apply to established luxury brands, being copied always runs the risk of being the ruin of a company.⁶⁸ Indeed, we all know the story of Burberry, a luxury British brand whose conservative customers turned their back on the brand in the early 2000s, when cheap knockoffs meant it started to be associated with the ‘chav’ aesthetic.⁶⁹ The overexposure of the check pattern meant that Burberry had to limit its own use of its signature pattern, and the brand has never fully recovered its luxury status or profitability ever since.⁷⁰ The evidence given to the 1840 Committee that poor copies reduced or halted the sales of originals is therefore just as relevant now: the uphill struggles that modern fashion designers have to face to protect their brand from the lasting effects of piracy are not so unique.⁷¹

The issues discussed earlier make it clear that the issue of copying in fashion has been a persistent challenge from the 17^th century until today. Overall, while market conditions and technology have changed, the fundamental issues surrounding copying—originality, competition and IP—remain as concerning for modern day fashion designers as they were for historical calico printers.

4. Lessons from the past

‘Those who cannot remember the past are condemned to repeat it.’—George Santayana⁷²

At first glance, it is not obvious what British calico printers have in common with modern-day fashion designers. However, by reflecting on the evidence given to the 1840 Committee, it becomes apparent that there is in fact a substantial overlap between the problems faced almost 200 years ago and those suffered by modern-day fashion designers. The examination of these problems is informative in terms of exploring which of these problems are implicit in the fashion industry, and which could benefit from more research and efforts to resolve them.

One complaint that features as frequently today as it did in the past is the difficulty the law has in defining exactly what a ‘copy’ is in the world of fashion, where every ‘new’ design could realistically be seen as an iteration of something already made. Another equally challenging problem is the criticism pertaining to the speed of copying. In our age of ‘fast fashion’, it is argued that copying has risen to such an extent that it has become the ruin of the industry.⁷³ With the advent of the internet and new technologies, it is frankly unsurprising that this argument is made today. Yet criticism about there being a speed and ease of copying unseen before has existed for centuries. The developments in machinery in the 19th century meant that piracy, once a labour of months, had suddenly become possible in as many hours.⁷⁴ This led to similar sense of unease and foreboding about piracy at the time. Despite the longevity of this problem, it is also not one which can easily be resolved. In this era of social media, AI and e-commerce, finding and copying designs is becoming easier, faster and more profitable than ever before, and it is unlikely to stop.

So, if we cannot change the ever-increasing ability to copy, we should ask what else can be done to ensure the industry continues to thrive. If legislation is to be relied upon, then it must be effective both in its ability to deter and also to punish copyists. This falls down today because of the inability of those who have been copied to effectively enforce their rights. The longstanding confusion and misunderstanding of the law which is experienced by fashion designers is a problem that could be improved, and should be tackled.⁷⁵ Protection should not be available only to the rich nor should it be too complicated to utilize. Having legislation which is too protracted, complex or expensive to apply promotes unrestrained piracy in all but name. This has contributed to a disappointing situation, whereby flagrant copying of fashion designs is seen as permissible and emerging UK fashion designers consider design rights ‘irrelevant’ to them because enforcement of their rights is simply out of the question.⁷⁶ This unjust state of affairs is not acceptable, and it is clear that more effort should be made by lawmakers to ensure that the IP system is accessible to all fashion designers.

By examining the calico copyright debate, areas which need further exploration are also highlighted. One of those being the views of consumers. It is notable that the Committee did not consider in any great detail how consumers would be impacted by an extension of copyright. Lionel Bently has commented that the lack of focus on consumers is a recurrent theme in the historical evolution of UK design and copyright law and ‘the question of what arrangements best promote consumer welfare has only rarely featured in, much less been at the forefront of, the debates.’⁷⁷ Although the IPO has recently stated they want the design system to respond to the changing needs of ‘U.K. innovators, creators, businesses and consumers’, seemingly acknowledging all stakeholders, this is not reflected in their research.⁷⁸ This is a failure which is overdue a remedy. If consumers are important enough to be viewed as stakeholders, with a vested interest in the law, their views must be considered when legislative change is contemplated.

Despite the above criticism, it is clear that some protection is better than none. The benefits of an IP system can be seen in the past, as today. The existence of legislation means that the threat of suing can be enough to deter copyists—avoiding litigation while protecting innovative originals.⁷⁹ Recent proof of this can be found in the work of an organization called Anti-Copying in Design (ACID). Founded in 1996, it boasts of a number of fashion cases they have worked on which have settled pre-litigation. In 2020, they assisted a brand called Robe de Voyage settle in mediation after COS sold lookalikes of their scribble designs, and in 2022 they drafted a pre-action letter to Pretty Little Thing which resulted in them removing a lookalike fashion accessory (without admitting liability).⁸⁰ This also points to another area warranting further investigation. Although the UK is criticized for fashion designers low usage of the IP system (both in terms of there being a low amount of registered fashion designs, and lack of fashion-related IP court cases), if unregistered design rights or copyright are relied upon, and any infringement dealt with via private settlements, then this criticism is unwarranted.⁸¹ As they are frequently not made public, such pre-litigation settlements are important areas which require further examination when determining how effective the UK IP regime actually is at protecting fashion.

5. Conclusion

This article started with a famous quote, but it lacked the second half. In fact, the full quote is ‘imitation is the sincerest form of flattery that mediocrity can pay to greatness’. If this is true, then rather than being beneficial to innovation, copies are deleterious. So, if we wish to protect original clothing and its creators, the law must achieve what we intend it to. In order for it to do so, not only is it necessary to recognize the problems of the past, but also examine which ones have the potential to be improved, or even resolved. It has been argued that the lessons which we can learn from the calico printing debate should extend to today, and the way in which legislative change is contemplated. Undoubtedly, some issues, like the ever-increasing speed of copying, or defining exactly when copying should be considered to ‘cross the line’, are implicit in protecting the notoriously challenging area of fashion. But others, like high costs and confusing legislation, which have frustrated fashion designers for hundreds of years, need further investigation and improvement. As the UK fashion industry grapples with new issues flowing from inventions like social media and fast fashion and AI, these needs remain as urgent and pressing as ever.

Acknowledgements

The author would like to thank Professor Matt Fisher for his advice, constructive feedback and unfaltering support. The author would also like to thank Dr Alina Trapova for her helpful comments and feedback and acknowledge the faculty and staff at UCL’s IBIL for their contributions.

Footnotes

Author notes