The Legality of Fashion Parodies

By Amy Wang

When the reputations of luxury design labels, headliners of Fashion Weeks around the world, are threatened by—gasp!—inelegant streetwear, whose artistic integrity prevails?

The Los Angeles–based clothing brand Kitson and its designer, Brian Lichtenberg, are notorious for their “remixing” of legendary brandings, coveted by young Hollywood stars and their civilian, scenester counterparts alike.   His recent line of punny sweatshirts commentates on the increased popularity of certain prescription drugs.  Consequently, the collection provoked almost immediate backlash from the pharmaceutical companies.  Most notably, however, Lichtenberg riffs off of high-end fashion labels.  His online store currently sells parody apparel almost exclusively.  Lichtenberg pokes fun of everyone from Gucci to The North Face.

Other streetwear brands, such as C.O.I. (Conflict of Interest), Reason Clothing, and LPD New York have similarly reconceptualized luxury logos.  Jil Sander inspired “Ill Slander,” Hermès was transformed into “Homiès,” and couture designers now have personalized hometeam jerseys.  These remixed designer labels encourage economical youth to emulate high fashion with humor—and without the price tag.

Generally, streetwear designers, like Lichtenberg, express admiration for the original labels and even garner support from the very designers they parody.  Riccardo Tisci of Givenchy reportedly even posted a picture of LPD’s “Team Tisci” jersey on his Instagram, and Lichtenberg’s “Céline [Dion]” tees were ordered for the entire crew at the actual Céline showroom in Paris.

However, many other luxury designers do not share Tisci’s appreciation of streetwear.  Parody fashions teeter dangerously close to infringing upon the original brands’ intellectual property rights.  Therefore, some name brands have preempted the threat by sending cease-and-desist letters to the parody designers and pulling original apparel from stores that stock the parody clothing.

A recent WWD article explains the tension between current street trends and the iconic fashion labels.  Basically, the consequent intellectual property issues hinge on a disconnect between trademark law and constitutionally protected expression.

Under the 2006 Trademark Dilution Revision Act, trademarked brands are protected from “blurring” or “tarnishment.”  Dilution from blurring occurs when a mark or trade name is similar enough to impair the distinctiveness of the original, precedent mark.  Alternatively, dilution from tarnishment occurs when similarity between the two marks harms the reputation of the original mark.

The legality of a parody fashion design therefore depends on two issues: (1) whether there is legitimate consumer confusion between the two brands (traditional trademark analysis), and (2) whether the parodied brand’s value becomes diluted by its imitator.  While knowledgeable consumers are unlikely to mistake a Homiès hat for the real thing, more off-color parodies pose a real risk of tarnishment to a luxury designer.

In response, streetwear designers may argue that their parodies are protected by the First Amendment.  However, as prominent intellectual property attorney Joseph Gioconda pointed out to WWD, commercial speech is not afforded the full protection of the First Amendment.  Because commercial speech is traditionally regulated by the government, it is subordinate to other constitutionally protected forms of expression.  Therefore, the legal protection for commercial parodies of fashion is limited and not as extensive as, say, for political speech.

Ultimately, few parody fashion/intellectual property conflicts have developed into full-fledged lawsuits.  The smaller streetwear labels generally give deference to the much more powerful designer fashion houses, which seems unfair.  The WWD article quotes Olivia Wolfe, cofounder of American Two Shot, saying, “high fashion has been grabbing from the street for ages. The script got flipped, and now the big brands don’t like it.”