There has recently been astronomical growth in the Nigerian fashion scene, especially concerning international recognition. According to the National Bureau of Statistics (NBS), the “textile, apparel, and footwear” sector has averaged a growth of 17% since 2010. It has proven to be a powerful driver of economic advancement, contributing to job creation and export revenue. They also serve as culture custodians, promoting Nigeria’s rich heritage, globally.
One of the brands that was present at the 2024 Heineken Lagos Fashion Week, Imad Eduso, in an attempt to safeguard their artistic expression and originality put out a legal notice forbidding brands from recreating any of their designs. This notice protects their SS25 collection– Laba Laba: Flames of Growth. “We are prepared to pursue the full extent of legal remedies against any infringing parties to protect our brand and uphold our commitment to our clients and parties”. The legal notice signed by the brand’s creative director, Oluwadamilola Olukoya, endeavors to shield the brand from copycats. Nigerian designers constantly live with the dreadful knowledge that the market doesn’t value creator rights. Sandrah Tubobereni, founder of Tubo, a fashion brand that combines traditional African craftsmanship with contemporary designs, also forewarned other Nigerian designers and tailors to desist from replicating her designs, as they risk facing legal consequences if they do not pay heed.
Founder of crochet fashion brand ByOre, Ore Akinde, in a conversation with Culture Custodian, defines design theft as “the unauthorised copying or imitation of a designer’s original work, including designs, patterns, or concepts. This can range from outright plagiarism to subtle appropriation”.
Many confuse design theft for counterfeiting, however, they’re quite different. Counterfeiting is the act of reproducing another brand’s identity– an impersonation of a brand. e.g. If you produce a crochet dress and add the ByOre fashion label and tag, it becomes counterfeiting. On the other hand, design theft is passing other brands’ designs as one’s original work.
Most people do not also grasp the difference between inspiration and outright theft. On 8th September 2024, Desiree Iyama called out a brand owner who claimed to have been inspired by her viral Meraki Dress. “Nothing about this is an inspiration. It is an outright copy” Iyama quoted the video which was posted on X (formerly known as Twitter) and it was followed by a lot of backlash from Netizens who believed she was being unreasonable for correcting the use of the word “inspiration” by the designer. They even went as far as insinuating that she was bullying the designer.
Akinde clarifies the difference between inspiration and design theft. “Inspiration involves infusing an already existing design into your own style and vision to create a completely new design. Inspiration sparks new ideas, while copying is simply replicating the same design. Inspiration can be a road to originality. But copying undermines originality.”
Globally, fast fashion brands are the most guilty of committing fashion piracy. Shein, the most-googleable fashion brand worldwide has generated over $100 billion selling goods ranging from clothes to home decor is one such company. The company has also been hit with numerous lawsuits alleging theft. Many argue that Shein’s low price point, providing cheaper clothing for the poorer population, should elicit a blind eye towards their unethical nature. The case for accessibility here is a weak argument due to the existence of many scenarios where slow fashion brands steal from other slow fashion brands and sell the designs at higher prices.
Design theft is often backed by consumers who do not understand the far-reaching effects of the unethical practice. End users often believe the issue with design theft is obscure– viewing from a myopic lens and pressuring original designers to feel flattered by the theft of their innovation. On the streets of TikTok, Kennie Customs, who released a viral corset-gather dress, embedded with bows at the chest line, put up a video mocking people copying her designs, and as always, the comments tried to tear her apart. Not seeing the problem with creators making profit off the work of others, many people accused her of being a busybody; some even compared her to the famous designer Veekeejames, saying that she shouldn’t be so protective of her designs if people like Veekejames aren’t.
Creative director and founder of Stella Yedia, Stella Atuboyedia, whose Joy dress sat atop fashion trends last year, tells Culture Custodian how fashion piracy has affected her brand negatively. “I have seen designers upload my design on their page like they are the original designers. Even though it hasn’t affected our demand– because the OG is always the OG. Nevertheless, psychologically, it has very much weighed me down”
Atuboyedia, who launched her new collection last year, Sono, filled with vibrant designs as she actively sticks to her brand’s staple– flare gowns, laments how this recent collection took more than a year of hard work and perseverance to enter the market. But, conversely, it took the copycats less than two weeks to recreate the designs they loved from the collection.
Akinde also shares a similar sentiment with Atuboyedia “When I see my designs out there without my permission it feels like my creativity and hard work are undervalued.” She continues by enunciating that on a larger scale, it does more harm to the industry than an individual designer.
Sadly, the fashion industry lacks the same level of intellectual property protection as other creative fields like music, literature, software, and visual arts. Bernice Asein, a fashion Lawyer, who founded Fashion Law Institute and Cardinal Counsel tells us why there is so much rigour around fashion’s intellectual property. “Fashion sits in a unique place because the line between function and art is blurry. Clothing isn’t just about creativity; it’s one of humanity’s basic needs, which complicates legal protections,” she says. “For instance, U.S. copyright laws don’t cover “useful articles,” so garments with practical purposes aren’t protected by copyright. Courts often separate a design’s functional parts from its artistic side, making it hard to protect a whole piece as intellectual property. Also remember that fashion draws heavily on history and culture making it tricky to meet the originality/novelty standards that intellectual property law demands, especially with fashion’s fast-paced cycle”
Notwithstanding the aforementioned reason, she still deems it paramount that there are laws that protect designers from fashion piracy. She believes that this protection will help them have control over their creations, income, and creative identity. Seeing that design theft chips away at what makes their work unique and can hurt their reputation and sales. Strong intellectual rights mean designers can feel secure knowing their ideas are safe and valued, which helps keep creativity and innovation flowing in the industry.
Nigeria’s Copyright Act 2022 in Section 1 offers intellectual property protection for various creative fields. However, there is a lacuna in Section 1 (3) that swallows fashion designers and excludes their designs from copyright protection. The section states that “An artistic work shall not be eligible for copyright if, at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.” because most clothing designs are intended for mass production, this section becomes a barrier.
This is not the only legal instrument that makes it difficult for a designer’s creativity to be sufficiently protected. Hindered by the limitations of the Copyright Act, a Nigerian fashion designer seeking intellectual property protection might turn to the Patents and Designs Act 1971. Although it starts off promising, Section 13 lays arduous conditions a design must fulfill to be protected; it must not be contrary to public order or morality, and it must be new.
The first ground is just as limiting as the second. Who holds the moral compass to tell when a design is contrary to public morality? On the other hand, the second ground introduces the phrase “new” without further elucidation in the Act, and insouciant to the fact that most clothing designs are iterations.
Akinde recommends education and awareness campaigns as a way to eradicate the harmful effects of design theft. “Raising awareness about the harmful effects of design theft is crucial. We can do this through education, advocacy, and collaboration. Fashion schools and industry organizations can incorporate discussions on ethical design practices into their programs, as well teaching designers all about intellectual property protections early in the design process. Social media platforms and online fashion communities must also highlight the issues with design theft and promote fair practices”
Atuboyedia believes design theft should be seen as what it is– stealing. She strongly recommends the establishment of a body that would enforce the punishment of fining brands that don’t respect innovation “The main obstacle is the lengthy and expensive legal process involved in pursuing a design theft cases. We need bodies that will make implementation faster and accessible to smaller brands.”
Additionally, consumers have a major role to play, with the power to deplatform brands that partake in plagiarism by not purchasing from them. By demanding authenticity and holding companies accountable for their actions, it invigorates respect for designers and their right to their intellectual property.
Thrifting is also encouraged; affordability is one of the major factors why consumers fall into the trap of purchasing from brands that commit design theft. In the long run, we don’t only get a better fashion industry where creativity is respected, but a healthier environment as well.
Many legal professionals recommend trademark protection. As it offers brands a path toward distinctive brand elements. Think of the iconic Ashluxe logo, the Louis Vuitton monogram, Burberry’s plaid pattern, or Christian Louboutin’s red soles; these are all protected trademarks seamlessly integrated into their designs. However, this is not practical for every brand’s design.
Asein sees the legislative amendment as the way forward. She gives a step-by-step process to how emerging designers can take affordable steps toward intellectual protection “They need to take advantage of copyright protections that apply automatically to original work. This can cover fabrics, surface patterns, and unique graphic elements like shapes, badges, or text on garments—no registration is required. As long as your work is original, copyright protection lasts up to 70 years after the creator’s death.” She continues “To strengthen their case they must learn to keep clear records: Document designs or sketches with dates. They should also sign and include the designer’s name on each entry. They should learn to use contracts with manufacturers, vendors, and employees to safeguard their intellectual property including NDAs when collaborating to protect their ideas.”
She concludes by advising fashion brand owners who cannot take on the financial burden of hiring fashion lawyers to take advantage of resources like the Fashion Law Institute’s free legal clinic– where they can get legal advice at no cost.
A crippling economy makes it difficult for a lot of people to afford the dresses they want by its original designers, however, if consumers consistently promote innovation in the fashion scene, even smaller brands that are more accessible will get the message. This will also reduce the possibility of waste with the numerous cases of “what I ordered vs what I got”.
In situations where brands and designers find themselves implicated in design theft, then it is necessary that due credit be given to the designer while simultaneously encouraging people to get the dress from its original designer. It is possible to recreate the Nigerian fashion space into a healthy and happy environment for all, especially one where designers do not live in fear of being robbed of their creative work.
Jessica Onyemauche is a freelance writer and law graduate who is passionate about intellectual property. She has written for notable publications like Native Magazine, African Women in Media News, Inspire the Mind, etc.
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