Kate Duckworth: intellectual property law expert on Kiwi designer Sera Lilly's designs being sold on Shein without her consent

Kiwi fashion designer Sera Lilly has taken to social media after discovering her designs - and original photos - on fast-fashion online giant Shein.

In a video shared to Facebook, Lilly revealed screenshots of at least two of her ‘Friday Flamingo’ designs being sold on the site. 

Shein has since removed the photos and items for sale. 

Intellectual property law expert Kate Duckworth says the internet makes in harder to enforce legislation designed to protect people's original works.

"It is still the wild west - how do you enforce your rights on a website that's based overseas?"

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Episode Transcript

Speaker 1 (00:06):
You're listening to the Sunday Session podcast with Francesca Rudkin
from News Talks ab Que.

Speaker 2 (00:13):
Fashion designer Sarah Lily has taken to social media after
finding not only her not I'll start again, after finding
not only her designs but her original photos on Fast
fashion brand Sheen. In a video shared to Facebook, Lily
revealed screenshots of at least two of her Friday Flamingo
designs being sold on the site. Sheen has since removed

(00:36):
the photos and items for sale. To discuss how this
all sets from a legal perspective and what level of
protection k WE companies have. I'm joined by intellectual property
law expert Kate Duckworth. Thanks to your time this morning, Kate,
Good morning.

Speaker 3 (00:49):
Good morning, Thank you for having me on your show.

Speaker 2 (00:52):
Hey, what are the rules here? Can a company overseas
take someone else's designs and sell them?

Speaker 3 (00:59):
No? And this is so blatant, isn't it. The dresses
are almost identical, and they probably are identical, and the
photographs that are clearly the exact photographs being used. So
it's one of the more blatant and brazen examples that
I've seen.

Speaker 2 (01:16):
So if they had taken the design but photographed it
themselves and maybe just altered it a fraction they could
potentially get away with it.

Speaker 3 (01:25):
Yes, that question of how much of an alteration is
it that it takes it away from the original, So
that's when things get murky. But this one, at least
from what we've seen, does look to be very similar,
if not the same.

Speaker 2 (01:40):
Oh, it's outrageous. I mean the photos. It looks like
they've just literally taken the marketing photos and youth that
they haven't even bothered trying to pretend that they haven't.

Speaker 3 (01:52):
I agree, it's very blatant, very obvious.

Speaker 2 (01:55):
So what does what sort of legal standing does a
business like serially have here?

Speaker 3 (02:02):
There's a couple of legal avenues and from what it
looks like, you would have a strong case under copyright
for copying the dress design, copyright in the photographs themselves,
and perhaps some other remedies, at least in New Zealand.
Under New Zealand law for something like passing off where

(02:23):
consumers would think that the original is or the second
comer is exactly the same as the original it doesn't
perceive any difference, and the Fair Trading Act for mis
leading and deceptive conduct. But it's this problem with the
Internet of territoriality. So what's it's sorry, carry on, go ahead,

(02:47):
you know it is still the Wild West. How do
you enforce your rights on a website that's based overseas.

Speaker 2 (02:55):
That was going to be my next question, especially if
you're a small New Zealand business. What is involved in
trying to take them on?

Speaker 3 (03:03):
Well, the first step has been done and it seems
that Shine has apologized and taken it down, which is
a huge win and means that perhaps no further action
needs to be taken except for some very vigilant monitoring.
But if that wasn't the case, and if Shine either
ignored the requests or just said no, and then you're

(03:28):
looking at having to try and find a court that
would enforce your rights against them and force them to
take down the pictures. But it's expensive, it can be
time consuming, and because of that territoriality or jurisdictional problem
can be very hard to do.

Speaker 2 (03:47):
Is it a common problem with sites like this and Timu?

Speaker 3 (03:52):
Yes, it is, I think, And that's one of the
problems with these sites is that even if people know
that it's not real and that it's ripping off and
hurting a new Zealand designer. The price is so low,
it's just so tempting.

Speaker 2 (04:10):
There really is an element though, of responsibility on the
consumer here to call out these companies and not buy
cheaper riffoffs as well, isn't it.

Speaker 3 (04:20):
Yeah, that is really the only way I think is
that is to say, hey, don't harm New Zealand designers
and New Zealand businesses and buy the real thing. But yeah,
I think that the price is so low. I can
I'd like to think I wouldn't do it myself, but
I can see why people do it. Yeah.

Speaker 2 (04:39):
No, we've put a band on those websites in our house, Kate. Look,
thank you for talking us through that. Really appreciate your
time this morning.

Speaker 1 (04:47):
For more from the Sunday session with Francesca Rudkin, listen
live to News Talks It'd be from nine am Sunday,
or follow the podcast on iHeartRadio