After Wilden reached out to Fashion Nova, she received the following message from a customer service rep, which she shared a screenshot of with Fashionista:

“Kindly note that Fashion Nova has different vendors all over the world and they are the ones who get to make the outfits we post on our website. I sincerely apologize for the inconvenience.”

While Fashion Nova did ultimately pull the dress from its site, its note to Wilden appeared to blame its vendors for any copying. What’s more, it’s unlikely to face any consequences for selling a dress so similar to Wilden’s. But why not?

Firstly, design imitations of the type Fashion Nova is accused of are in effect legal in the US, where the brand is based. It and other fast fashion retailers, including Zara and H&M, have a record of ripping off designers with no consequences. Mostly, this is due to old copyright laws, which make the bar for protecting a fashion design via a patent incredibly high. As Fashionista noted, manufacturing clothing “of identical shape, cut, and dimensions,” is not prohibited thanks to a 2017 Supreme Court ruling from Star Athletica, LLC v. Varsity Brands, Inc. An original design would have to be dubbed worthy of adequate “creative expression” (PDF) to be eligible for protection.

A trademark attorney that Fashionista spoke to said that “one cannot copyright the shape of the dress, nor, say the particular shape of the cups or straps as those might be considered functional elements of the garment (to hold up your breasts) [and] Wilden’s dress is therefore ineligible for copyright protection.”

Secondly, brands can deflect the blame for ripped-off designs on their vendors if they don’t design their pieces in house. This is due to private labeling, which is a practice between fashion labels and their suppliers that accounts for nearly a third of the apparel market, according to WWD.

The ins and out of the private labeling world—which is a big moneymaker for a growing number of brands—can be confusing, and even rather shady. On one end of the spectrum, there are companies such as Everlane, which prides itself on transparency: The company buys directly from the factories listed on its website. Then you have fast fashion companies like Fashion Nova and its ilk, that also purchase finished items from a manufacturer, but aren’t particularly transparent about their vendors.

Oftentimes, the factories doing private labeling are in countries (China, BangladeshVietnam, and other major clothing export hubs (pdf)) where the labels have little oversight over working conditions, let alone copyright violations. In this case, one or more of Fashion Nova’s manufacturers appears to have copied Wilden’s designs, and then sold it to the company.

As Wilden pointed out in her post, garment workers in factories around the world—most of whom are womena large percentage of them displaced migrants—are often poorly paid, and work in sweatshop-like conditions. In addition to exploitative practices, the $2.5 trillion fast fashion industry is causing an environmental “emergency” thanks to it being one of largest global users of water (pdf). What’s more, much of the low-cost clothing produced by the industry can be quickly discarded, and goes on to clog waterways and fill landfills where its synthetic compounds can take hundreds or thousands of years to biodegrade.

Private labeling is also the reason that the exact same item will show up in different stores, with different labels. Last May, for example, a group of Twitter users noticed that the fast fashion retailer Rainbow, Fashion Nova, and other brands were selling the exact same clothing items with different names, labels, and prices on their websites.

Twitter user @nekhole_, began a thread that compared clothing on the sites—from shorts to shoes to dresses—noting that while the items looked different on the models, they were virtually identical. Rainbow’s clothes were often much cheaper than other versions.

Image for article titled Fast fashion exploits everyone it touches
Image: @nekhole__

A Rainbow assistant manager retweeted the thread, confirming that Rainbow did, in fact, “buy from the same vendors” as Fashion Nova, and saying that the “Nova label jacks the price up.” The thread garnered over 700 comments, including stories from women who had ordered from Fashion Nova and received clothing with tags from other fast fashion chains, including Charlotte Russe and Rue21. Rainbow did not respond to multiple requests for comment.

At the time of the thread, we noticed several instances of duplicate items across different brands, often with different names and different prices. The flowered romper pictured above, for instance, was on sale at Charlotte Russe for $14.99 as a “Floral Off-The-Shoulder Romper.” You could find it under the same name at Rainbow for $12.99, and as the “Second Wind Floral Romper” for $12 on Fashion Nova.

Image for article titled Fast fashion exploits everyone it touches
Image: @nekhole_

In this situation, the manufacturer would have made separate agreements with each retailer to mark the products with each brand’s individual label. The retailer can then set the price, which is how you get the same dress, with different names and prices, on three different websites.

Private labeling is a common practice for retailers, Fashionista has explained, adding that when speaking with industry insiders about it “the common reaction was along the lines of, ‘Yeah….so, what?'” Still, for the average buyer, it can be surprising, especially when prices vary by as much as 80%.

And of course the fact that this practice is ubiquitous offers little comfort to designers like Wilden.

📬 Sign up for the Daily Brief

Our free, fast, and fun briefing on the global economy, delivered every weekday morning.