Dupe Culture is Leading to AI Hurting Independent Designers

By: Asha Johnson, Senior Writer Edited by: Rezi Ubogu

With one online search for an item of clothing, people are led down a rabbit hole of different brands offering and advertising various deals or sales. Through this sea of brand promises, fast fashion brands stand out and have been heavily marketed on search engines and social media. However, these brands hide something sinister behind their clothing and flashy marketing tactics. Taking designs within the fast fashion industry has grown into a much bigger problem with the recent popularity of dupe culture on social media. These big brands have made billions from stealing designs from independent designers for years, and with the rise of artificial intelligence, it is easier than ever for them to do so and market these designs online. 

With the rise of social media and e-commerce, dupes have become a bigger part of pop culture. They are often confused with counterfeits, which are fashion items that say they are a specific brand but falsely represent themselves. The goal of counterfeits is to look as much like the original as possible, making them illegal under trademark laws. With the prices of items rising, dupes are seen as a legal, affordable version of a more expensive product. 

However, the lines between dupes and counterfeits are becoming increasingly blurred. Brands that claim to sell dupes of items are creating ones that look exactly like the real thing. There are Intellectual Property (IP) laws within the fashion industry. IPs are about protecting new items, logos, and symbols that represent the brand, but these laws are not without their loopholes or exceptions. For instance, Section 43 of the Lanham Act allows designers to protect their unregistered trademarks (logos, unique designs, etc.) from being copied in order to prevent consumer confusion. However, this law does not apply to general designs that the court deems “functional.”   

According to Intellectual Property Fashion and Footwear Expert Witness, Caroline de Baere, IP is about owning and protecting our designs. “I think of it as an asset that's part of a brand portfolio,” she said. “Brands have sales and products, but their intellectual property is also an asset that has value. I think brand ownership is about being unique and distinguishing yourself in the marketplace.”

Intellectual Property laws vary from country to country, and designers have to apply for copyrights or trademarks in different countries for them to apply. “If you get a patent or trademark in the United States, it is also necessary to apply for the same protection in each country that you plan to do business,” de Baere said. “There’s a time limit from when you launch the product or make it available for sale with regard to patents, and for trademarks it needs to be in commerce within a certain period of time.”

Similar to dupes, AI is taking over more industries, including fashion. It is being used for everything from predicting trends to reducing production costs. This rise has not come without its concerns from people within the industry. AI often takes a snapshot of data from different sources to create its own version or answer while it's training. This includes designs by other brands, colorways, trends, etc. Recently, AI has been used to market designs, and brands have been accused of using this technology to search the internet for popular designs to mass-produce under their own brand. For example, a Shein lawsuit alleged that the brand used AI and other data tracking programs to find designs and infringe on already copyrighted work in April of last year. The case’s verdict was “dismissal without prejudice” and ended last October. 

Not only has AI been used to steal designs, but it is also being used to market them. Cassey Ho, or “Blogilates,” is an influencer and founder of the fashion label, Pop Flex. Pop Flex has a signature skort featuring shorts, an adjustable waistband band and pockets. Last year, Ho alleged that sellers on Amazon copied the design of the skort. She also alleged that some sellers used AI to market it by posting a video of her wearing the skirt and manipulating her likeness into another person. This behavior can hurt independent designers, who sometimes have fewer resources and connections within the industry. Getting design patents and copyrights is often a long, lengthy process, and lawsuits are expensive. Furthermore, when lawsuits go through, they are often settled or stopped entirely.   

The push for buying dupes online, along with fast fashion brands using designs from other artists and designers, are blurring the lines between taking and inspiration. Furthermore, using AI and advanced technology to look at other people's designs further confuses inspiration and infringement. Fast fashion brands have profited immensely, earning billions of dollars from cheap labor and stealing other designers' work. When they find themselves in lawsuits, there is little justice for the people hurt. AI technology needs to be more regulated within the industry, and IP laws need to be stricter, leaving less room for loopholes or exceptions. 

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