Last week, they were meeting with a customer who wanted to exchange her shirt for a different size. “As we were leaving, she was like, ‘Yeah, I’m so glad I bought this one because I saw the other one in Forever 21 and I love yours so much better!’ We were like, ‘What do you mean?’ ” Darton said.
Searching the retailer’s website, they spotted the shirt. Forever 21 was also selling a tee with “woman” spelled out in different languages, in black type in a vertical line down a white front.
They posted a side-by-side comparison on Instagram, taking care not to explicitly accuse the fast-fashion behemoth. By the next morning, the post was shared not only by fashion editors but also by left-leaning people outside the industry, along with the tired eye roll: It looked as if Forever 21 had copied the work of an independent designer.
This felt as familiar as an old knock-off purse. Back in 2011, Jezebel documented 50 complaints against the clothing store. (Its Forever 21 story stash runs deep.)
Earlier this month, Freckled Ace accused the brand of ripping off its tribal-print tank top; last month, the gender-bending boutique brand Wildfang complained when its slogan, “Wild Feminist,” appeared on a T-shirt sold by Forever 21. And in May, Valfré fired off a cease-and-desist letter when it believed its rainbow iPhone cases were being replicated.
Less than 18 hours after Darton and Carrasco posted the comparison, Forever 21 removed its version of the shirt from its website. “I follow Valfré, and I’ve bought some of her stuff,” Darton said. “I saw the Wildfang thing. I’ve known this is a thing, so when it happened I wasn’t totally surprised. I was surprised by how quickly they did it.”
In a statement to the New York Times, Forever 21 said, “The shirt in question was bought from a third-party source. As soon as Forever 21 was alerted to the issue, we respectfully removed it from our website. Because this product did not have trademark or IP protections, there were no red flags raised at the time of purchase.”
Darton said that the company’s apology was not an apology but “an admission of guilt.” She feels grateful that she and Carrasco aren’t designers by trade; they didn’t lose revenue here, only the opportunity to give to Planned Parenthood. “We live in a corporate society — what can we do? What can these designers do?”
In Europe, said Susan Scafidi, the founder of the Fashion Law Institute at Fordham University, “there is protection for design, a lot more extensively than there is in the U.S.” (Scafidi has been busy commenting to the press on Forever 21.)
This is why European fast-fashion companies including H&M, Zara, Mango and Topshop don’t find themselves in these situations as often. “Their model isn’t to take runway pieces and knock them off, per se, but to interpret trends,” Scafidi said. “There is nothing wrong with interpreting trends for the mass market. They learn to switch things up, design-wise, to avoid liability.”
A designer’s path of less resistance may be to send a cease-and-desist letter or hope for a hefty settlement. (“They build those settlements into their business structure,” Scafidi said.) One designer approached for this story could not speak to the Times because of the terms of her agreement with a fast-fashion brand.
And big brands that believe they have been copied, such as Gucci, Diane von Furstenberg and Puma, have the resources to pursue more extensive legal action. But for indies or just plain folks, the less expensive, and possibly less rewarding, practice is to shame the copiers on Instagram.
“Indie designers now have this secondary strategy of appealing to the public via social media,” Scafidi said. This recourse is even cheaper than the stamp it costs to send a cease-and-desist.
Aubrie Pagano, a co-founder of the cheeky brand Bow and Drape, posted to social media last year when Forever 21 released a shirt that was similar to one of her designs — right down to the heart-shaped pepperonis on a pizza in her original pattern. Her lawyers advised against anything more serious. “I felt pretty powerless,” Pagano said. While her brand name got a boost from coverage in fashion outlets including Refinery29, the effect on her sales was “negligible.”
“Our customers were standing up for us” she said. “It was a brand-building moment, not a revenue-generating moment.”
Valfré, the phone case maker, contends that Forever 21 did not comply with its cease-and-desist letter. The company has filed a federal lawsuit against Forever 21, which has denied all liability. The case is moving toward trial.
What can stop the cycle? Emma McIlroy, the CEO of Wildfang, is still reviewing her legal options but has an idea. “The only way this is going to change is to stop supporting these brands,” she said. “If you walk into Forever 21 and spend your dollars there, you’re quite literally taking money of out of the pocket of small businesses like mine. You’re threatening the jobs of people who work in small businesses like mine.”
McIlroy is further distressed by the “poetry” of a large corporation selling a feminist T-shirt to young women that it may have stolen from an actual young woman’s feminist T-shirt brand. “It’s more than ironic,” McIlroy said. “It’s painful.”
Darton herself has shopped at Forever 21. “I’m not a millionaire, and I want to look good” she said. “But at the end of the day, I’d rather buy more expensive pieces for my wardrobe than treat people with such little respect.”