(Yet Another) Artist is Suing Shein – How Copyright Law May (or May Not) Help

Fast fashion company Shein is up against another artist for infringement. Earlier this summer, Angela Jarman filed a copyright lawsuit against Shein for copying her original fairy wing designs.

The Complaint includes a number of examples to demonstrate Shein’s alleged infringement, including the one featured below:

Jarman is a professional artist and designer who mainly produces iridescent fairy wings. These fairy wing designs have been purchased and showcased by many well-known brands and celebrities, including Victoria’s Secret and Katy Perry.

Jarman alleges that Shein, without authorization to do so, infringed on the copyright of two of her designs titled “Titania Fairy Wings” and “Teasel Fairy Wings”, both acquired valid copyright registrations prior to the alleged infringement.

Jarman’s allegations include the producing, distributing, and/or selling of products to the public by Shein subsequent to the stealing of the Subject Designs. She alleges that the fashion company had access to the subject designs through her website, her social media accounts, the visibility of her designs due to their repeated use by popular brands, celebrities, and publications, and Shein’s overall awareness of Jarman and her fairy wing business.

Copyright law tends to be the go-to source of protection for artists, but even copyright law has its limitations. Despite having received registration certificates for each of the subject designs from the U.S. Copyright Office, Shein will undoubtably challenge the extent of that protection considering that the subject designs are representations of a commonly known creature: a fairy.

Even though fairies are fictional creatures, they are still generally in the public domain. When depicting something in the public domain, infringers often make the argument that the artist’s depiction of that subject lacks the “requisite level of creativity” sufficient to entitle them to copyright protection. This is a potential obstacle that many artists will need to take into consideration when alleging copyright protection in their work.

Public domain characters, creatures, and places have long served as inspiration for artists across generations. These timeless figures offer an abundance of creative potential for artists. Whenever depicting common motifs, or creatures from the natural or fictional world, artists should be aware that copyright protection over their creation may be susceptible to these arguments.

GS2Law challenged similar arguments made against the unique dragon illustration featured below:

© Shirley & Andrea Shepard, 1993

In that case, the defendant moved to dismiss on the basis that since the Chinese dragon is in the public domain, the design was not entitled to copyright protection. However, as the Court acknowledged from GS2Law’s arguments and judicial precedent, “‘original expression of an animal’s appearance may be eligible for copyright protection’ . . . including ‘the pose and posture of an animal,’ . . . ‘the angle of the animal’s head, the juxtaposition of its body parts, and the shape of the body parts’ . . .  ‘pose, attitude, gesture, muscle structure, facial expression, coat, or texture. . . may be protectable.’” Indeed, the Court agreed with GS2Law’s analysis that the dragon had original and creative elements, including, at a minimum:

• “a dragon resting on its clawed feet with an arched tail extending toward its mouth, mimicking the shape of a circle;”
• a “wide jaw slightly opened, and sturdy claws reaching out . . . creates an expression of a dragon that appears strong and powerful;” and
• “the cloud-shaped patterns.”

The Court added that “even though the dragon is a mythical animal that exists only in imaginations, and has seen numerous renditions over the course of history, the Shepards’ interpretation of a dragon embodied in the Alla Prima Dragon still contains sufficient elements of originality.” Can the same be said for Jarman’s fairy wing designs?

As an artist, what are some considerations to protect your designs based on something in the public domain? Consider,

• how is your depiction different than the way the subject usually appears in the natural (or fictional) world?
• how is your depiction of the subject, artistically different than other depictions of that subject? Is it the look and feel, the style, textures, or the shapes that are different? For example, a cubist’s and an impressionist’s rendering of the same tree would look markedly different.
• does your depiction communicate an original message about the subject?
• how much variety already exists in other depictions of that particular subject?

With Shein’s response now due October 9, 2023, we will see if Shein attempts to dismiss Jarman’s fairy designs as public domain.

Speak with an IP Lawyer at GS2Law in confidence.  If you would like to know more about copyright protection and enforcement, we encourage you to get in touch.  To schedule a confidential consultation with an IP lawyer at GS2 Law, please request an appointment online today.