If copyright law won’t protect small fashion brands against copying, social media will – just ask influencer Danielle Bernstein

“Girl you are not going to enjoy your time here,” read a particularly prophetic comment on Danielle Bernstein’s very first Tik Tok video, published in late February. Just a few days later, she would disable commenting on her profile altogether due to an influx of negative comments on her posts. How does an influencer and fashion designer become so despised? In this case, via alleged copyright infringement.

Danielle Bernstein is a 28-year-old New York City influencer and founder of the brand We Wore What (“WWW”). She has 2.6 million followers on Instagram, was allegedly making “seven figures” as of 2017, and has a book on the New York Times bestseller list (Tik Tok commenters would remind you, however, that her listing had a dagger next to it). However, an equally long list of controversies accompanies this list of accomplishments, the majority of which involve alleged copying.

This pattern begins as far back as May of 2018, when Bernstein was accused of copying pieces from several smaller jewelry lines for a collaboration she did with Nordstrom. Nordstrom removed the pieces at issue, and everything seemed to be fine on the copying front—until 2020 hit. To give a rough timeline of Bernstein’s year:

• March 2020: she is accused of copying Cecilie Bahnsen designs for a collaboration with Macy’s
• July 2020: she purchases shorts from an Australian Etsy designer, calls them “vintage gym shorts,” and announces an intent to remake them for her brand (she later retracts this plan due to backlash)
• July 2020: she solicits free samples of masks-with-a-chain from small Latina-owned business By Second Wind, and then tells creator Karen Perez that she is going to sell a nearly identical product (she later retracts this plan as well)
• October 2020: Brooklyn-based small lingerie brand The Great Eros accuses her of copying their signature tissue paper design
• November 2020: she is accused by the designer of Grayscale, a Black-owned fashion line, of copying a skirt of theirs that she had purchased and reviewed in the past for her upcoming holiday line at Macy’s

Perhaps the most infamous of the above scandals was the allegation of copyright infringement by The Great Eros (“TGE”). TGE claimed Bernstein copied their signature pattern of nude female silhouette line drawings, which had been printed on their tissue paper since the store’s inception in 2016. They first called out Bernstein on their Instagram stories and privately sent her and We Wore What a cease and desist letter in August 2020. Bernstein responded by filing a suit for declaratory judgment, essentially asking the court to rule that WWW’s silhouette design did not infringe on TGE’s design. (If successful, this would mean TGE could not file an infringement suit). Bernstein’s counsel argued that there was no substantial similarity between the two designs, and that besides that, TGE’s design should only be entitled to “thin” protection since there are only so many ways to render a nude female human body in line drawing form. TGE filed an answer, denying that the designs were substantially different, and claiming that Bernstein had been to their showroom prior to producing the allegedly infringing design. This dispute was quickly picked up by fashion watchdog Diet Prada. The account and its 2.6 million followers threw their full support behind TGE, and in November 2020 the brand filed its own separate lawsuit for copyright infringement against Bernstein. (The suits are still ongoing as of now.)

As mentioned above, Diet Prada has played a large—if not leading—role in criticizing Bernstein and calling out all of her alleged copying (Bernstein even had a lawyer send the account a cease and desist in August 2020). Started in 2015, the fashion watchdog Instagram account has since gained widespread name recognition and had a significant impact in the fashion industry. Its primary purpose was to call out copycats within the industry, but it quickly began to focus on calling out racism and cultural appropriation as well. Perhaps most notably, the account was a major force in getting a Dolce & Gabbana show in Shanghai canceled after the fashion house ran an ad that was racist against Chinese people. (Side note: in a move eerily similar to Bernstein’s suit against TGE, D&G is currently suing Diet Prada in Italian court for defamation).

Even though calling out fashion copycats is literally Diet Prada’s raison d’être, the account has been particularly relentless with Bernstein, making nine posts about her in the past year. This could be due to many reasons, but it seems to be indicative of a larger trend and sentiment within the fashion community: Bernstein is copying the wrong people and brands. Take, for example, a recent copying callout post from March 6, in which Diet Prada claims Versace’s new monogram print is too similar to prints by Goyard and Fendi. In this alleged copying between major fashion houses, the account’s tone is more lighthearted (the caption ends with “lol”), as are the comments (which refer to the copying as “funny” and “disappointing”—though, notably, one pinned comment reads, “Something tells me @weworewhat [Bernstein] was helping out Versace with this.”). Compare that to the comment section of any post about Bernstein, or the comments on her Tik Tok page, which included “Welcome to tik tok westolewhat” and “We Colonized What.” Bernstein elicits a special type of anger, one that isn’t aimed at just copying in general.

Copyright protection is generally very loose when it comes to fashion design, largely because clothes are inherently functional, and there is a lot of hesitation to afford intellectual property protection to pure functionality. It is also often argued that fashion recycles itself, and there has to be a loose definition of “copying” if the industry is to be able to create and innovate freely. However, with the rise of Diet Prada and their strong focus on social justice, which was reinforced and amplified by the Black Lives Matter movement this past year, there is now a very sharp distinction between “punching up” and “punching down” when it comes to copying in fashion. When Versace copies Fendi, it’s entertaining and kind of embarrassing. When Bernstein and her seven-figure brand copy small, Latina- and Black-owned businesses, it’s malicious and opportunistic. And if copyright law cannot provide small businesses the legal protection they desire, watchdog accounts and “fashion Tik Tok” have made it clear that they are willing to step in and fill that gap.