Influencers and Originality

Dupe companies are increasingly copying luxury brands’ advertising to sell duplicate products, raising questions about intellectual property and fair competition. As consumer interest in high-end fashion skyrockets, driven by claims such as Birkin bags outperforming gold as an investment, luxury brands are seeing record-breaking sales. These companies spend millions on tailored advertising campaigns. In contrast, dupe companies, which sell inexpensive copies of luxury goods, cut costs by copying the advertising that luxury brands invested significant time and money to develop.

Perhaps the most duped company in recent memory is Skims, Kim Kardashian’s luxury shapewear brand. Skims built its brand recognition through influencer marketing, by sending free products to creators who posted “try-on” videos under the hashtag #Skimspartner on their public social media accounts. These videos showcase the product’s versatility and contribute to the company’s heightened brand-name recognition, constantly sold-out inventory, and new brick-and-mortar Skims stores now present in major U.S. cities. However, this grassroots-inspired advertising strategy also made Skims an easy target for dupe brands, which now replicate these influencer videos with minimal edits, sometimes just swapping the Skims name for their own. The result is a growing tension: while Skims heavily invests in its advertising and brand image, dupe companies benefit from those efforts at only a fraction of the cost. Dupe companies now have access to a treasure-trove of ready-made marketing content, already tested and proven to work. Luxury brands are fighting to protect their image and investment, while dupe companies argue that they’re simply making fashion more accessible. The question is: when does copying cross the line from crafty to unethical?

To resolve this issue, it is helpful to look at the doctrine of originality from Feist Publications, Inc. v. Rural Telephone Service Co. In Feist, a rural telephone company published a directory listing its subscribers’ names alphabetically in the white pages. A competing publisher, after being denied permission to use those listings, copied the names directly into its own phonebook. The Supreme Court held that the original phonebook was not protected by copyright because the listings lacked the minimal degree of creativity required for protection. “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” The Court emphasized that facts themselves are not copyrightable and merely arranging them alphabetically, without any creative input, does not meet the threshold of originality. As a result, the phonebook publisher had no valid claim against the competitor.

This doctrine of originality provides valuable insights into resolving the dispute over dupe companies copying luxury brand advertisements. According to Feist, copyright protection requires both 1) independent creation and 2) a modicum of creativity. The first element, independent creation, is deceptively but clearly met by Skims’ partnered social media posts. While these influencers’ posts might appear to be authentic content made for followers, they are in fact carefully produced by the Skims' marketing team. The posts are first conceptualized by Skims, then communicated to these influencers with specific instructions, and must go through multiple revisions and approvals before being posted. As such, these posts are independent creations of Skims, not merely the work of the influencers. Dupe companies, on the other hand, do not independently create new content but simply substitute their brand name into posts without adding any creative input. This therefore fails to meet the independent creation requirement. For the second element, a modicum of creativity, Skims' advertisements also undoubtedly meet the threshold. Even if dupe companies argue that Skims' strategy of imitating genuine influencer product endorsements lacks originality, the originality doctrine does not require novelty, only a minimal degree of creativity. If asked to prove this element in court, Skims would likely be able to produce the myriad advertising strategy documents to demonstrate the creative process behind the #Skimspartner posts, further solidifying their originality. With both elements of the originality doctrine met, Skims is entitled to protection, and unlike the competing phone book publisher in Feist, dupe companies would be barred from copying Skims' advertising material.

In evaluating the outcome of this dispute, the rule seems to lead to a fair result. Although it may be difficult to root for the larger company, especially one owned by such a polarizing figure, the policy underlying Skims' victory aligns with fundamental property rights principles, particularly the Lockean theory of natural rights. Under Locke's theory, individuals are innately entitled to the fruits of their own labor, and this labor is the basis for property ownership, which in turn incentivizes further labor. Skims, having invested significant time, resources, and creativity into its influencer-driven advertising strategy, is therefore deserving of protection for its intellectual property. This protection not only rewards the company for its labor but also incentivizes continued creative work, which is vital in a competitive market. From a consumer perspective, one could argue that the use of Skims’ advertisements by dupe companies inadvertently promotes the brand, creating a paradox where the larger company is not actually being injured at all. This raises a deeper question about how companies balance enforcing property rights with the potential marketing benefits through impersonation. If luxury brands are benefitting from the actions of dupe companies, then it may be difficult for consumers to defend them against copycat behavior. In such cases, the law should consider how property rights interact with market dynamics, especially when the line between competition and the benefit of copying becomes blurred.

Paige Buckley is a current 1L at the American University Washington College of Law and a junior staffer on the International Law Review.

Alessandra Hallman is a current 1L at the American University Washington College of Law and a junior staffer on the International Law Review.

Carol Thukral is a current 1L at the American University Washington College of Law and a junior staffer on the Business Law Review.

Image: mikemacmarketing, Social Media Screens Scattered On A Table.