Recount: A Tale of Kentucky's Gubernatorial Election

Blog Post | 108 KY. L. J. ONLINE | January 10, 2020

Recount: A Tale of Kentucky's Gubernatorial Election

Zac Losey

As the election returns rolled in for Kentucky’s state constitutional offices on November 5, all eyes quickly turned to the results of the gubernatorial contest. By night’s end, with the unofficial votes almost fully tallied, the Democratic challenger Andy Beshear led Republican incumbent Matt Bevin by just 5082 votes[1]—a margin of just 0.36 percent. However, around 10:00pm when Bevin took the stage at the Galt House in Louisville, he somewhat surprisingly informed the audience that he would not be conceding due to unspecified “irregularities” and said that the result would be subject to “well-established” laws and procedures.[2] And while he has since conceded,[3] the world of Kentucky politics was in temporary upheaval when State Senate President Robert Stivers suggested that Bevin may invoke a provision of the state constitution[4] that would allow the state legislature to decide the winner of the election.[5]

That provision and the state laws passed under it essentially give the state legislature unfettered discretion to choose the winner of an election when a losing candidate contests the result, with no requirements that there be actual proof of any fraud, misconduct, or “irregularities.” These comments and the extremely small margin separating the two candidates led many to ask: what is the procedure for challenging and checking the results of a gubernatorial election?

In Kentucky, the most basic, and typically the first, step to ensure accurate vote totals is a recanvass. Most people are familiar with a recount, a procedure where ballots are hand checked for accuracy and authenticity, which is distinct from a recanvass, where vote totals are essentially just being double checked to make sure the math adds up. The procedures for a recanvass are laid out in state statutes, which give a statewide candidate one week after election day to make a written request for a recanvass to the Secretary of State.[6] If such a request is made, the recanvass must take place on the Thursday following the deadline to make the request.[7] During a recanvass, each political party and the media is permitted to have a representative present while each county board of elections double checks their vote tallies.[8] Once the vote totals are confirmed, they are sent to the State Board of Elections and thereafter considered the official returns for the election.[9] Recanvasses seldom change the outcome of an election, and often only yield “very modest revisions.”[10]

So, what if a candidate is still not happy with the results of an election after the recanvass? In many cases, the next step would be a recount, in which individual ballots are each counted again to ensure their integrity and accuracy. Many states permit candidates to request a recount if the vote margin is small enough, but in Kentucky there is no threshold—any candidate entitled to request a recount may do so regardless of how many votes they lost by.[11] To request a recount, the candidate must file a petition in Circuit Court within ten days of the election, and once certain procedural requirements are satisfied, the court will take possession of all the relevant “voting machines, ballots, boxes, and [] papers” and conduct the recount.[12]

However, in Kentucky, while most general election candidates can request a recount, candidates for governor, lieutenant governor, and the state legislature cannot.[13] For those candidates, the only recourse after a recanvass is an election contest. This is the procedure that left many uneasy after Kentucky’s gubernatorial contest. Not only does Kentucky’s election contest procedure allow the state legislature to choose the winner of an election regardless of who received the most votes—which understandably caused alarm, since the Kentucky legislature is controlled by a Republican supermajority and Republican state legislatures elsewhere have shown a brazen willingness to undermine rule of law[14]—but the state also has an unpleasant history with election contests. The last time a gubernatorial election was contested in the legislature, the governor was assassinated and the state nearly fell into a state of civil war.[15]

An election contest is authorized in section 90 of the Kentucky Constitution, which simply states that “[c]ontested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.”[16] After the State Board of Elections has given final action to the results, state law gives candidates on a gubernatorial ticket thirty days to file a written notice of contest.[17] Once the contest has been initiated, the General Assembly selects eleven members to be on a board (three from the Senate and eight from the House of Representatives) by randomly drawing names of members from a box.[18] That board then gathers evidence, hears testimony, and makes findings.[19] After its investigation, the board’s decision is reported to a joint session of both chambers, where a final vote is taken to determine whether to accept the board’s recommendation.[20]

While certain procedural requirements are spelled out in state statute, the legislature appears to have broad discretion on whether to uphold or overturn the results of a gubernatorial election. The legislature is not required to justify their decision, and there is no requirement for sufficiency of evidence, no burden of proof on the candidate contesting the election, and no judicial review of the result of an election contest.[21] In the wake of this year’s election, many were fearful that Bevin would contest the election under spurious claims of voter fraud, which have become concerningly common across the country,[22] and the legislature would be free to declare him the winner—even if there were no legitimate grounds for doing so.

While ultimately the election was not contested and we appear to once again be headed toward a peaceful transition of power, this year’s election is a powerful reminder of the fragility of democracy and the power public officials can have over the public’s faith in elections. That power must be exercised responsibly, and officials should be careful not to undermine our electoral system with unfounded claims of voter fraud. And if they continue to do so, more responsible and patriotic public officials would do well to strengthen democratic safeguards—perhaps by requiring claims of “irregularities” and fraud to be proven by real, objective standards of evidence before permitting legislatures to thwart the will of the people and overturn an election.

[1] Veronica Rocha & Fernando Alfonso III, Election Day in Kentucky, Mississippi and Virginia, CNN Politics (last updated Nov. 6, 2019, 12:04pm), http://cnn.com/politics/live-news/2019-election-results-kentucky-mississippi-virginia/index.html. The final margin after the recanvass showed Beshear up 5136 votes over Bevin. Adam Levy & Kate Sullivan, Republican Matt Bevin Concedes Defeat in Kentucky Governor’s Race, CNN Politics (Nov. 14, 2019), https://www.cnn.com/2019/11/14/politics/kentucky-governor-recanvas-begins/index.html.

[2] Steve Brusk, Adam Levy, & Caroline Kelly, Bevin Campaign Formally Asks for a Recanvass in Kentucky, CNN Politics (last updated Nov. 6, 2019, 6:47pm), https://www.cnn.com/2019/11/06/politics/bevin-recanvass-kentucky/index.html.

[3] Steven Shepard, Matt Bevin Concedes Kentucky Governor’s Race, Politico (Nov. 14, 2019), https://www.politico.com/news/2019/11/14/matt-bevin-concedes-kentucky-governor-070975.

[4] Ky. Const. § 90 (Contest of election of Governor, Lieutenant Governor, or General Assembly member).

[5] Phillip M. Bailey & Joe Sonka, Beshear vs. Bevin: Kentucky Governor’s Race Could Be Decided by State Legislature, USA Today (Nov. 7, 2019), https://www.msn.com/en-us/news/elections-2020/beshear-vs-bevin-kentucky-governors-race-could-be-decided-by-state-legislature/ar-AAJXgkI.

[6] Ky. Rev. Stat. Ann § 117.305(1) (LexisNexis 2019).

[7] Id. (“[T]he county election board shall assemble at 9 a.m. on the Thursday following the filing deadline to request a recanvass”).

[8] Id.

[9] Id.

[10] Rick Pojas & Patrick J. Lyons, How Kentucky Will Decide Who Won the Governor’s Race, N.Y. Times (Nov. 7, 2019), https://www.nytimes.com/2019/11/07/us/kentucky-governor-election.html (quoting Professor Joshua A. Douglas, “In every instance, the vote totals change by a very small amount.”).

[11] Ky. Rev. Stat. Ann § 120.185(1) (LexisNexis 2019).

[12] Id.

[13] Id. (Providing that a recount is only available to candidates to which KRS 120.155 applies, which specifically states that it does not apply to candidates for governor, lieutenant governor, or member of the General Assembly). 

[14] See, e.g., Ari Melber, What Happens When Losers of Elections Won’t Relinquish Power?, The Washington Post (Dec. 6, 2018), https://www.washingtonpost.com/outlook/2018/12/06/what-it-means-democracy-if-losers-elections-dont-relinquish-power/ (describing actions taken by the Wisconsin’s republican state legislature to strip the governor of power after a democrat beat a republican incumbent).

[15] Ian Shapira, The Last Time Kentucky Fought Over a Gubernatorial Election, The Governor Got Killed, The Washington Post (Nov. 10, 2019) https://www.washingtonpost.com/history/2019/11/10/last-time-kentucky-fought-over-gubernatorial-election-governor-got-killed/.

[16] Ky. Const. § 90.

[17] Ky. Rev. Stat. Ann § 120.195(1)-(2) (LexisNexis 2019).

[18] Ky. Rev. Stat. Ann § 120.205(1) (LexisNexis 2019). 

[19] Ky. Rev. Stat. Ann § 120.185 (LexisNexis 2019).

[20] Ky. Rev. Stat. Ann § 120.185(5) (LexisNexis 2019).

[21] Taylor v. Beckham, 56 S.W. 17 (Ky. 1900) (holding that the General Assembly has exclusive power to pass on sufficiency of evidence, and that courts will not inquire on whether the ultimate decision of the Assembly is correct.).

[22] See, e.g., Chris Cillizza, Debunking Donald Trump’s Latest Voter Fraud Claim About New Hampshire, CNN Politics (Aug. 16, 2019) https://www.cnn.com/2019/08/16/politics/donald-trump-new-hampshire-vote-fraud/index.html; German Lopez, Trump’s Voter Fraud Commission, Explained, Vox (Jan. 3, 2018), https://www.vox.com/policy-and-politics/2017/6/30/15900478/trump-voter-fraud-suppression-commission.

To Defend or Not to Defend: Commercial General Liability (CGL) Insurers at the Center of Opioid Litigation

Blog Post | 108 KY. L. J. ONLINE | January 10, 2020

To Defend or Not to Defend: Commercial General Liability (CGL) Insurers at the Center of Opioid Litigation

Clay Thornton[1]

In light of the opioid epidemic, drug distributors are being brought into litigation. A question intriguing many insurers is to what extent do they have a duty to defend drug distributors in “pill mill” litigation? Underlying this issue is an inquiry as to whether the product was defective with respect to its intended use.[2]

Generally, like any other business entity, pharmaceutical drug distributors may hold commercial general liability [hereafter “CGL”] insurance, sometimes referred to as business liability policies.[3] CGL insurance provides coverage to business and commercial entities for specified categories of claims arising from injury to property and from liability for claims brought by a third party against the insured.[4]

While the federal court for the Western District of Kentucky has held that the insurance company has a duty to defend the pharmaceutical drug distributor,[5] several jurisdictions have held there is no duty to defend based upon prior gun manufacturing cases.[6]

Duty To Defend

In Cincinnati Insurance Co. v. Richie Enterprises, LLC, Richie Enterprises, LLC [hereafter “Richie”], a pharmaceutical drug distributor incorporated in Kentucky, was sued alongside twelve other drug distributors by the State of West Virginia, whose Attorney General alleged that they were supplying doctors and drugstores with drug quantities in excess of legitimate medical need.[7] Richie sought insurance defense from Cincinnati Insurance under its CGL policy; however, Richie refused to provide defense after concluding the claims brought by West Virginia were not covered by the CGL policy’s limits.[8] Cincinnati Insurance filed a declaratory judgment that there would be no duty to defend.[9]

Under Kentucky law, an insurer has a duty to defend when “there is any allegation which potentially, possibly or might come within the coverage of the policy”; or, restated in other words, the “insurance company must defend any suit in which the language of the complaint would bring it within the policy coverage regardless of the merit of the action.”[10]

Based upon the language of the CGL policy, the Western District of Kentucky had to determine whether the complaint alleged an: “occurrence”, “bodily injury” or “property damage”, and whether the possibility for coverage was removed by the policy’s exclusionary clause regarding intentional and criminal acts.[11] Similar to other CGL policies, the policy at hand provided the following definitions: “Occurrence” is "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."[12] “Bodily injury” is "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time."[13] “Property damage” is "[p]hysical injury to tangible property, including all resulting loss of use of that property."[14]

Occurrence

The Kentucky courts have defined “occurrence” to mean an “accident,” which inherently points to the doctrine of fortuity comprised of two central components, namely intent and control.[15] Regarding intent, Cincinnati Insurance contended West Virginia’s claim that Ritchie provided drugs in excess of medical necessity created a foreseeable result;[16] whereas, Ritchie argued the alleged claims sounded in negligence and, further, Ritchie was simply distributing in response to orders received from doctors and state-regulated pharmacies.[17] Regarding control, Cincinnati Insurance contended that the supplying of drugs to pharmacies was not an accidental result by Ritchie; whereas, Ritchie argued that the resulting drug epidemic was not foreseeable from their actions and was completely within the control of the pharmacists, physicians, and end-users of the prescription drugs.[18] Favoring Ritchie, the Western District held there was an occurrence.[19]

Bodily Injury or Property Damage

Cincinnati Insurance provided several substantive and persuasive arguments which indicated that the Attorney General’s Complaint sounded in economic damages, as opposed to “bodily injury” or “property damage”; however, the Western District of Kentucky favored a conclusion of bodily injury due to medical monitoring. [20]

Intentional and Criminal Act Exclusionary Provision

Cincinnati Insurance finally argued that the allegations of intentional and criminal conduct made their intentional and criminal act exclusionary provision applicable. In Thompson v. West American Ins. Co., the Kentucky Court of Appeals held that “allegations of the complaint cannot compel a defense if coverage does not exist”  and, further, that the “obligation to defend arises out of the insurance contract, not from the allegations of the complaint against the insured.”[21]

The Western District of Kentucky, however, held the conduct of distributing prescription drugs based upon orders placed by pharmacies is not, in and of itself, illegal and the violation of laws could be reasonably anticipated.[22] Thus, the Western District concluded that the insurer had a duty to defend.[23] This decision was bolstered by a similar holding from a district court in South Carolina regarding one of the other defendant-drug distributors.[24]

No Duty To Defend

Products-Completed Operations Exclusions & “Arising Out of” Considerations

In three federal court cases, the courts have concluded that a products exclusion provision operated to exclude coverage for claims against gun manufacturers for injuries allegedly caused by the guns the insureds had manufactured, and the insurers in opioid litigation have looked to these cases for support.[25] The issue is whether the damages “arise out of” the use of guns, and are thus excluded from coverage under the policies’ products-completed operations hazard exclusions.[26]

Black’s Law Dictionary defines “arise” to mean “[t]o spring up, originate, to come into being or notice.”[27] In Mass. Bay. Ins. Co. v. Bushmaster Firearms, Inc., the victims and family of victims of a shooting incident sued several gun manufacturers.[28] There, a Maine District Court held the damage that the product in question, namely firearms, created was within the products- completed operations hazard language and was thus excluded from coverage.[29] The Maine District Court looked to an earlier decision by the First Circuit regarding gun manufacturers in Brazas Sporting Arms v. American Empire Surplus, in which the insured argued that the exclusion was limited to defective products.[30]The First Circuit rejected the insured’s argument by stating:

The products-completed operations hazard includes in plain and unambiguous language “all ‘bodily injury’ and ‘property damage occurring away from premises you own or rent and arising out of ‘your product.’” Where, as here, the language of the exclusion provision is unambiguous, the text should be given its plain meaning. In this case, the plain meaning of the exclusion is that it applies to all product-related injuries.[31]

In Taurus, another gun manufacturer case, the insured again argued that the products-completed operations exclusion should be applied only to defective product.[32] The Taurus court’s review of case law across the nation revealed: First, most courts have not considered whether such provisions should only apply to defective products. Second, those that have are split on the issue of whether to construe “arising out of” language as restricted to only defective products or a broader interpretation. Third, the language of the policy is the most important factor for determining the duty to defend question.[33] The Taurus court ultimately held there was no coverage because the claims fell within exclusions for “‘bodily injury and property damage … arising out of your product.’”[34]

In opioid litigation citing these gun manufacturing cases, the court in The Travelers Property Casualty Co. of America v. Actavis, Inc. held the insurer had no duty to defend the insured-pharmaceutical companies.[35] Regarding an “occurrence,” or “accident,” the Court of Appeal of California held that the test is “whether an additional, unexpected, independent, and unforeseen happening produced the consequences.”[36] There, the court said the role of doctors in prescribing, or misprescribing, opioids is not an independent or unforeseen happening.[37] Regarding Products Exclusion language, the insurance policies in question provided: exclusion of coverage for bodily injury “arising out of” (Travelers Policies) or that “results from” (St. Paul Policies) “[a]ny goods or products…manufactured, sold, handled, distributed or disposed of by” the insured.[38] The Products Exclusions in the policies at question were unambiguous, stating: 

The declarations page states that the Travelers Policies have a general aggregate limit that applies to claims “[o]ther than Products-Completed Operations.” Because no classification of products claims is listed on the declarations page or a policy schedule, all products and operations are subject to the Products Exclusions.[39] A host of federal and state cases supported this decision in Actavis, Inc. that Products Exclusions bar coverage. [40]

Conclusion

The sample of court decisions provided exemplify how courts have reached different conclusions regarding insurer’s duty to defend in opioid litigation. The decisions have depended upon the construction of the insurance policy at hand,[41] differing state law interpretations of “occurrences” or “accidents” regarding intent,[42] and court interpretations of products-completed exclusionary clauses.

 With that recognition, depending on the jurisdiction in which an insurer finds themselves, the answer may still be unclear. However, if there is any consolation, the standing case law provides a litany of successful arguments for both insurers and insureds in future opioid litigation.

 [1] Staff Editor, Kentucky Law Journal, Volume 108; J.D. Candidate, University of Kentucky College of Law (2021); B.S., Accounting, B.S., Economics, Gatton College of Business and Economics, University of Kentucky (2018).

[2]Aetna Casualty & Surety Co. v. Richmond, 76 Cal. App. 3d 645 at 654 (Cal. Dist. Ct. App. 1977).

[3] Stephen Michael Sheppard, Commercial General Liability, The Wolters Kluwer Bouvier Law Dictionary Desk Edition.

[4] Id.

[5] Cincinnati Insurance Co. v. Richie Enterprises, LLC, 2014 U.S. Dist. LEXIS 27306 (W.D. Ky. 2014). See Liberty Mutual Fire Ins. Co. v. JM Smith Corp., 602 Fed. Appx. 115, 116 (4th Cir. 2015). The Fourth Circuit held that because the claims alleged in the West Virginia complaint create a possibility for coverage, the insurer was held to have a duty to defend the drug manufacturer.

[6] See The Travelers Property Casualty Co. of America v. Actavis, Inc., 16 Cal. App. 5th 1026. See also Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So. 2d 528; Brazas Sporting Arms v. American Empire Surplus (1st Cir. 2000) 220 F.3d 1; Beretta U.S.A. Corp. v. Fed. Ins. Co. (4th Cir. 2001) 17 Fed. Appx. 250; Massachusetts Bay Ins. Co. v. Bushmaster Firearms (D.Me. 2004) 324 F.Supp.2d 110. Products exclusion provision operated to exclude.

[7] Cincinnati Insurance Co. v. Richie Enterprises, LLC, 2014 U.S. Dist. LEXIS 27306 at *1-2 (W.D. Ky. 2014).

[8] Id. at *5.

[9] Id.

[10] Id. at *9. (citing James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky. 1991)).

[11] Id. at *8.

[12] Id.

[13] Id. at *7-8.

[14] Id. at *8.

[15] Id. at *9-10. (citing Cincinnati Ins. Co. v. Motorist Mutual Ins. Co., 306 S.W.3d 69, 73-74 (Ky. 2010).

[16] Id. at *13-14.

[17] Id. at *11-13.

[18] Id. at *18-19.

[19] Id. at *19-20.

[20] Id. at *23-24. See Baughman v. U.S. Liab. Ins. Co., 662 F. Supp. 2d 386, 396 (D.N.J. 2009) ("The underlying plaintiffs have brought suit to procure, among other things, the costs of medical monitoring 'as damages' for the 'bodily injury' they allegedly suffered due to exposure to dangerous levels of mercury and so the underlying suit falls within the general coverage of the CGL policy.").

[21] Id. at *24-25. (quoting Thompson v. West American Ins. Co., 839 S.W.2d 579 (Ky. App. 1992)).

[22] Id. at *25.

[23] Id. at *15. (citing Liberty Mutual Fire Insurance Co. v. J M Smith Corp., 2013 U.S. Dist. LEXIS 136448. Affirmed in Liberty Mut. Fire Ins. Co. v. J M Smith Corp., 602 Fed. Appx. 115 (4th Cir. 2015)).

[24] Id.

[25] The Travelers Property Casualty Co. of America v. Actavis, Inc., 16 Cal. App. 5th 1026 (Cal. Dist. Ct. App. 2017). See Brazas Sporting Arms v. American Empire Surplus, 220 F.3d 1 (1st Cir. 2000); Beretta U.S.A. Corp. v. Fed. Ins. Co., 17 Fed. Appx. 250 (4th Cir. 2001); Massachusetts Bay Ins. Co. v. Bushmaster Firearms, 324 F.Supp.2d 110 (D.Me. 2004).

[26] Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 530 (Fla. 2005).

[27] Taurus Holdings, Inc., 913 So.2d at 536 (citing Arise, Black's Law Dictionary (6th ed. 1990)).

[28] Massachusetts Bay Ins. Co. v. Bushmaster Firearms, 324 F.Supp.2d 110 (D.Me. 2004).

[29] Id. at 112.

[30] Id. at 113.

[31] Id. (quoting Brazas Sporting Arms v. American Empire Surplus, 220 F.3d 1, 6 (1st Cir. 2000)).

[32] Taurus Holdings, Inc., 913 So.2d at 537.

[33] Id.

[34] Id. at 530.

[35] The Travelers Property Casualty Co. of America, 16 Cal. App. 5th at 1026.

[36] Id. at 1042.

[37] Id.

[38] Id. at 1044.

[39] Id. at 1051-52.

[40] Id. at 1046-47. See Travelers Property Casualty Co. of America v. Anda, Inc., 658 Fed.Appx. 955 (11th Cir. 2016).

[41] See The Travelers Property Casualty Co. of America, 16 Cal. App. 5th at 1051-52.

[42] Id. at 1042-43.

Keeping Up With Copyright Infringement: Fast Fashion’s Modern Takeover

Blog Post | 108 KY. L. J. ONLINE | January 9, 2020

Keeping Up With Copyright Infringement: Fast Fashion’s Modern Takeover

Catherine Potter 

Copyright infringement is a pinnacle problem in the fashion industry, as fast fashion retailers “knock off” designs created by independent designers worn by social media stars. The crux of this problem lies in current United States copyright law which protects only original prints or graphics, not the actual designs carefully crafted by highly skilled fashion designers.

[1] These loopholes allow for fast fashion brands to profit, legally, on the designs of others, as clothing designs can be easily duplicated without permission of the original creator.[2]

Fast fashion company business models rely on the ability to copy trends, quickly produce them, and then bring them to market at a low price point.[3] The sector is “ridiculously profitable” and demands legal representation as such.[4] The industry remains successful because consumers rely on brands like Fashion Nova, Forever 21, Missguided, Asos, and others to recreate celebrity looks for cheaper prices.[5]

Different from music, art, literature, and other creative industries, fashion copyright law remains outdated.[6] Fashion was historically centered in Europe, with hubs in Paris and Milan.[7] During the 1980s and 90s, American designers emerged to the forefront.[8] Fashion designers in France and Italy remain protected by their country’s copyright laws, though American law has not developed to afford their designers the same protection.[9]

In 2004, Forever 21 was sued by multiple designers like Diane Von Furstenberg and Anna Sui, along with 47 other designers, for copying their clothing.[10] Forever 21’s defense was “ignorance” and that they could not monitor every buyer or vendor to the point of knowing how they came up with the repeat designs.[11] In 2012, Christian Louboutin sued Zara for copying their iconic red sole, selling the shoe for much less than the average $700 price per pair, with the court ruling that the trademarked red sole was too vague.[12]

 Today, social media has had a tremendous effect on consumer demand for fast fashion, as high profile celebrities and social media influencers such as Kim Kardashian, Kylie Jenner, Jennifer Lopez, and others post on their social media platforms in couture designs by Thierry Mugler, Versace, or Jean Paul Gaultier, days later to be copied by companies like Fashion Nova or Missguided, and the like.[13] Kim Kardashian filed suit recently against Missguided, a British Fast Fashion company, alleging that they used her likeness to sell cheaper versions of the designer clothing she wears.[14]Interestingly enough, Kardashian and the designers did not maintain infringement claims, but right of publicity violations.[15] Kardashian settled with Missguided and received $2.7 million dollars in damages from the company.[16]

John Galliano famously turned newspaper printed textiles into garments while at Christian Dior in the early 2000s.[17]Pretty Little Thing, another fast fashion company, recreated the garment using Galliano’s same name in the print.[18]Online sources believe that the use of the print alone will not give rise to an infringement claim, but rather falls under the copyright law doctrine of “idea-expression dichotomy” which provides legal protection over the expression of an idea, not the actual idea in and of itself.[19]

These knock offs are arguably what fuels part of the fashion industry, generating billions of dollars. The law protects this profitability but it is worth questioning whether if the outdated copyright laws were modernized that these high profile designers would be afforded more legal protection and ability to bring copyright infringement claims, perhaps mirroring the protections given to European designers. 

[1]Amy Lamare, How Fast Fashion Became a Multi-Trillion-Dollar Industry, Thinknum, 

 https://media.thinknum.com/articles/examining-fast-fashions-appeal-and-issues/ (last visited Jan. 9, 2020). 

[2] Chavie Lieber, Fashion brands steal design ideas all the time. And it’s completely legal., Vox (April 27, 2018), https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m.

[3] Id.

[4] Id.

[5] Maria Bobila, 11 Retailers to Know in a Post-Forever 21 World, Fashionista (Oct. 10, 2019), https://fashionista.com/2019/10/fast-fashion-stores-retailers-brands-like-forever-21.

[6] Chavie Lieber, Beyond Elle Woods: The Rise of Fashion Law, Racked (Jan. 15, 2015), https://www.racked.com/2015/1/15/7561277/fashion-law.

[7] Id.

 [8] Id.

 [9] Id.

[10] Amy Lamare, How Fast Fashion Became a Multi-Trillion-Dollar Industry, Thinknum, 

 https://media.thinknum.com/articles/examining-fast-fashions-appeal-and-issues/ (last visited Jan. 9, 2020). 

[11] Id.

[12] Id.

[13] Lisette Voytko, Versace Sues Fashion Nova For Knowing Off Famous Jennifer Lopez ‘Jungle’ Dress, Forbes (Nov. 27, 2019, 9:00 AM ), https://www.forbes.com/sites/lisettevoytko/2019/11/27/versace-sues-fashion-nova-for-knocking-off-famous-jennifer-lopez-jungle-dress/#6609f8b71d4c.

[14] Will Martin, Kim Kardashian won $2.7 million in a lawsuit accusing fast-fashion brand Missguided of ‘knocking off’ her clothes, Business Insider (July 4, 2019, 5:45 AM), https://www.businessinsider.com/kim-kardashian-missguided-lawsuit-awarded-damages-california-judge-2019-7; From Zara to Fashion Nova: Fast Fashion is Big Business & More Often Than Not, Perfectly Legal, The Fashion Law (Feb. 28, 2019), https://www.thefashionlaw.com/home/from-zara-and-hampm-to-missguided-and-fashion-nova-fast-fashion-is-big-business-and-more-often-than-not-perfectly-legal.

[15] From Zara to Fashion Nova: Fast Fashion is Big Business & More Often Than Not, Perfectly Legal, The Fashion Law (Feb. 28, 2019), https://www.thefashionlaw.com/home/from-zara-and-hampm-to-missguided-and-fashion-nova-fast-fashion-is-big-business-and-more-often-than-not-perfectly-legal.

[16] Greg Barradale, Missguided has to pay Kim K $2 million for ripping off her looks,The Tab, https://thetab.com/uk/2019/07/04/missguided-have-to-pay-kim-k-2-million-for-ripping-off-her-looks-109310 (last visited Jan. 8, 2019). 

 [17] John Galliano’s Newspaper Print is Getting the Fast Fashion Treatment 20 Years Later, The Fashion Law (Jan. 6, 2020),  https://www.thefashionlaw.com/home/john-gallianos-newspaper-print-is-getting-the-fast-fashion-treatment-20-years-later.

 [18] Id.

 [19] Id.