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Copyright and creativity in fashion—where to draw the line?

In 2018, a Brazilian boy—Wallace Rocha was photographed wearing a counterfeit yellow jersey with the name Coutinho inscribed on the back. Philippe Coutinho is a Brazilian football player who, at the time, was playing the World Cup finals in Russia. The picture of Wallace received a lot of attention on Instagram and eventually made its way to the player himself. Coutinho was so moved by the photo that he gifted the boy an official jersey.

Wallace comes from one of Rio’s poorest favelas and could not purchase the original football kit. Although the image went viral, there were little remarks on the infringement of trademark laws. Brazil’s National Football club, who frequently engages in IP (Intellectual Property) proceedings, didn't pursue any legal action against the boy, thereby conceding that his actions weren't blameworthy. Yet, many others coming from a similar socioeconomic background as Wallace are not given the same benefits when it comes to IP laws. In Guatemala, the national legislature has altered trademark laws in agreement with the WTO’s (World Trade Organization) IP protections by signing the TRIPS (Trade-Related Aspects of IP Rights) Agreement.

Under this agreement, anyone using sensorially perceptible symbols from another firm is guilty of trademark infringement. This includes language (such as the name or slogan of a company), images, graphic designs, color combinations, fonts and even sounds or smells. These new regulations criminalize Guatemalan manufacturers that print global brand logos on their garments. Yet, many of the clothing items in Guatemalan markets are reproductions of international brands like Nike, Abercrombie & Fitch, Hollister and Diesel. It's particularly young men like Wallace who wear these unauthorized replicas.

While knockoffs are illegal in the eyes of the government, they are fully accepted by the locals. They are inferior in quality and pricing to the originals. Everyone knows they’re knockoffs. It’s clearly visible. This, however, doesn’t matter in Guatemala because brand names have a different value. Guatemalans don’t wear these logos to show affluence and wealth. Simply, wearing these logos demonstrates that you know what 'stylish' means. Awareness of brands like Hollister and Abercrombie existing indicates that you are fashionable in Guatemalan society. Fun fact: in her research, American anthropologist Kedron Thomas found that Guatemalan manufacturers believe that they create something new and original although incorporating logos from multinational brands.

Guatemala’s cheap knockoffs are only purchased by people who can’t afford originals, so they don’t actuallyaffect the company’s sales. Still, powerful corporate lobbies are pushing for stronger implementation of IP laws to protect their image from brand pollution. They don’t want their brand associated with such indigenous groups. These corporations are pursuing exclusivity along borders of class and certain countries. There have been international pressures on Guatemala to better enforce IP laws. In a 2009 report on international infringement of trademark laws, the United States urged the Guatemalan government to 'extend its efforts to pursue raids and prosecutions.' Responding to this, Guatemala appointed a special prosecutor for IP rights and increased the number of street raids, which continue to this day. Through these augmented IP protection efforts, the government positions itself as a protector of brand identity for transnational corporations.

Image: Unsplash

Yet, in Guatemala police funds were already limited and constrained by efforts to fight crime. By reallocating resources to the enforcement of trademark laws, the country decreased its expenditure on the fight against violence and drugs. They serve the commercial interests of powerful American corporations to maintain trade relations while ignoring the economic revolution that the clothes manufacturing brought about to Guatemalans; they can now manage their own firms, buy property and educate their children. Furthermore, it should be noted that Guatemala has been in the civil war for thirty-six years until 1996. That legacy of doubt and distrust towards a government doesn't just go away overnight. Guatemalans are still sceptical about their government's motives. When it comes to IP laws, that doubt may, in fact, be valid.

According to Kedron Thomas, the underpaid police assigned to enforcing trademark law in 2009 ended up taking the counterfeit items they seized during raids in Guatemala City. So not only is the police taking away merchandize from local retailers who can barely meet their production costs, but they also inhibit multinational corporations in their fight against brand pollution. This case highlights how IP laws just don't work that well in some creative industries. The purpose of the TRIPS agreement is that: 'Both producers and users benefit, and economic and social welfare should be enhanced'. I would argue that IP laws, like many other regulations in our world, benefit those who inherently hold more power while leaving people like Wallace and indigenous Guatemalans at a disadvantage.

However, it's not just the local Guatemalans who borrow ideas from big companies. High-end brands do it too. In 2017, Balenciaga, an influential luxury brand, released a Carry Shopper bag. It's a large, blue bag that bears an uncanny resemblance to IKEA's Frakta shopping bag. The distinction between the two is that Balenciaga placed its logo on the bag and priced it at $2,150 as opposed to IKEA's $0.99 original. IKEA didn’t take any legal action against Balenciaga. Instead, they created a guide to recognizing a real Frakta bag. According to the guide, distinctive features include rustling, ability to carry bricks, easily cleanable with a hose and a price of $0.99.

This was not the only instance when Balenciaga borrowed ideas from other companies. In fact, the brand has been sued multiple times for copyright infringement. Mr Gvasalia, Balenciaga's creative director, has responded to the claims made on his usage of copyrighted designs by saying: 'What is a source, what is an influence, what is a copy? The answers are difficult to define.'

A question then arises. Why are the Guatemalans considered criminals while Balenciaga's creators are considered creatives? What Guatemala’s manufacturers do isn't much different from what international fashion labels do during their creative process. It's assumed that IP laws are to promote creativity. Yet, as technology continues to seep into our social existence, it becomes harder to draw the line between creativity and copying. On the internet, anything can be seen, recreated and transformed. Can this be considered an infringement of IP laws? In theory, this is the same thing that Guatemalan manufacturers do by placing logos on their shirts and altering the design. However, as IP rights are constructed now, Guatemalan producers are criminals.

Nothing is truly original in our digital society. Individuals always borrow ideas from others and recycle them. Even Pablo Picasso said that art is theft. In certain communities, trademark laws end up undermining creative expression, and some industries work better through self-governance. Intellectual property laws should be about creativity, so they must be judged by individual conditions.

Next time you see a product that looks similar to something you've seen before, ask yourself: are they copying, or are they just transforming? Where do you draw the line between copyright and creativity?

Edited by Liza Mikhaleva, the Fashion editor