Skorting the Law

Dupe culture has challenged brands to grapple with how they can protect their designs. In 2013, brands began marketing their products to consumers on social media sites like TikTok and Instagram. Fast-fashion retailers noticed the gap between consumers who desired to purchase trending products but could not afford them and began replicating popular designs and selling them for cheaper prices.  

Cassey Ho, founder of activewear brand POPFLEX, designed the Pirouette Skort. The patented design gained massive attention in April 2024 when singer-songwriter Taylor Swift posted a picture of herself wearing the Pirouette Skort. Ho’s celebration of the Pirouette Skort’s success was short-lived, however, when Amazon and SHEIN imitated the design and began selling it for a fraction of the original price. As a result, Ho has been engaged in ongoing legal disputes with the fast-fashion retailers.

Although the basis of Ho’s lawsuit is patent infringement, there may be some useful insights to be gained from copyright law, in particular the fair use doctrine discussed in Campbell v. Acuff-Rose Music, Inc. In Campbell, Acuff-Rose, the rightsholder of the song “Oh Pretty Woman,” registered the song for copyright protection. A rap group known as 2 Live Crew released a song titled “Pretty Woman,” intended to be a parody of “Oh Pretty Woman.” Acuff-Rose sued 2 Live Crew, arguing that “Pretty Woman” constitutes copyright infringement. However, the court, analyzing the issue under the Fair Use Doctrine, disagreed. The doctrine permits the unlicensed use of a copyrighted work based on four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The court found that the purpose and character of the parody is an exaggerated social critique of the original song and that the nature of the original song was intended as a creative expression for public dissemination. Furthermore, the court stated that the parody’s use of the original song’s lyrics was not too much. And the parody will not have a significant effect on the value of the original song because parodies and original songs serve different market functions. Accordingly, the court ruled that the parody does not constitute copyright infringement.

These four factors offer useful thoughts on whether Amazon and SHEIN’s copies of the Pirouette Skort ought to be permissible. First, the purpose and character of Amazon and SHEIN’s imitations is to market and sell fashionable activewear. If the fast-fashion retailers were instead artists who were using Ho’s design to make a social commentary on the predictability of athleticwear, this case may look more similar to the facts in Campbell. However, that is not the case here.

Second, the Pirouette Skort falls within the core of copyright purposes because it is a unique design of activewear intended for public dissemination. Had Ho designed a simple exercise skort, without its high-fashion inspired mesh pleats, two deep side pockets on built-in inner shorts, or its stitch-free front seam for added flattery, it would be more difficult to argue that dupes substantially copied Ho’s original design. However, the Pirouette Skort, which has been praised for its ballet-inspired tiered design that complements various body shapes and sizes, is far from generic. Ho did not simply intend to create another exercise skort but sought to design a product that combines functionality and comfort with style.

Third, unlike the parody in Campbell, which used a reasonable portion of the original lyrics, the dupes copy the exact design and stitching of the Pirouette Skort, featuring its “tiered overlay, adjustable waist, and camouflaged pockets.” If Amazon and SHEIN’s imitations incorporated some features of the Pirouette Skort, but not all, a court may conclude that the dupes did not copy a substantial portion of the original design. But Amazon and SHEIN’s imitations mirror the same design and stitching of the Pirouette Skort.

Finally, because fast-fashion retailers and POPFLEX serve the same market function of selling activewear to the public, the dupes will affect the value and market of the Pirouette Skort. Consumers are more likely to buy a product for a lower price. Thus, a court is likely to find that the dupes infringe on Ho’s patented design. As noted above, if the fast-fashion retailers were instead artists using Ho’s design to make a social commentary, a court may may find, like it did in Campbell, that the because the Pirouette Skort and the dupes are not serving the same market function, the dupes will likely not affect the value and market of the Pirouette Skort.

Our society relies on having a system of rules and laws that provide certainty and reliability. When brands obtain patents or copyright protection, they are taking appropriate measures to safeguard their creative inventions. Thus, when others infringe on this right by copying and unfairly using original works, creators should be afforded legal remedies for the economic harm that they suffer. Adopting rules like the fair use doctrine and extending its application to patent law, as shown above, can be useful to courts when determining whether a dupe violates design patent law.

Miheret Hasenu is a student at the American University Washington College of Law.

Image: David Ring, Tutu.