The Complicated Ethics of Design Replicas
In fashion, the design of a garment can not be copyrighted. This means that if I was a fashion designer and I invent a fancy new coat silhouette on Monday, show it on the runway on Tuesday and it’s copied by a sweatshop on Wednesday, I can do nothing about it legally, as long as the company mass producing it doesn’t claim it’s genuine MyBrandLabel. I remember one season where I bought a fast fashion jacket at Target with some ruffles on it, and then saw an identical jacket with different buttons at 3 other fast fashion stores in the same week. A designer had shown it on the runway, and everyone copied. And this is legal.
There are, however, a few things that are protected by law: logos and brand names can be trademarked, and textile prints can be copyrighted as art. Copyright on textiles is automatic just like other fine art, it doesn’t need to be registered, however, it’s necessary to register a work if you are going to sue someone over it in the US.
You also can’t copyright an idea. So if I have the idea of opening a cat cafe / ice cream parlor and I do it and it’s really rough, like I’m eating ramen every night because that’s all I can afford kind of rough, but I stick with it for the dream, and then it goes viral and everything’s great…. and then someone else copies the idea, steals all my customers and makes millions… I can’t really do anything about that legally.
So how does this fit in with lolita? Most lolita brands, even the ones you know well, are very small companies. Interviews with designers have basically said, time and time again that this is something you have to love if you are going to do it. Lolita designers don’t get rich off of designing lolita.
So, when a brand designs a shoe, or a dress or a coat, and it’s popular and does well, so well that they can keep re-making it and it still sells, that’s a big deal to these small companies. Any time something can be re-released, it saves time and money and something that is a guaranteed sale is great as far as risk goes.
But sometimes, another company comes along, takes the idea and replicates it. This is legal, sure. But it’s taking someone else’s idea without asking and duplicating it. In some cases, like with the 6% doki doki star clips that Chocomint copied, the replica becomes better known than the original.
And I own things like this; I own chocomint star clips along side 6% doki doki ones. I own shoes that were likely “inspired” by other shoes and blouses that were likely “inspired” by other blouses. The lolita market is full of items like this, some identical to their inspiration, and others showing another designer’s take on the concept. To a degree, we consider this pretty normal, and in the fast fashion world, especially, it is. It’s also very common for less expensive or items with a larger size range to be copy-cat items.
That said, this is Mary Magdalene’s Ekaterina OP. It’s one of the most widely copied lolita dress designs.
On one hand, Mary Magdalene barely ever releases clothing anymore, so it’s very hard to obtain this piece legitimately.
And even if you do obtain a legitimate Mary Magdalene Ekaterina OP, it’s a set size.
Availability, price and sizing makes this dress not accessible to a large number of people, and legally, there is no reason why they can’t have someone make them a copy in their size and/or at their price point.
But, on the other hand, Mary Magdalene is a tiny, tiny company.
I’d like to share a passage from the 2011 paper Lolita: Dreaming, Despairing, Defying by Terasa Younker. The author worked as a shop clerk at Baby the Stars Shine Bright and in the offices of Mary Magdalene in 2010 as part of their research. Earlier in the paper, they explain that Mary Magdalene has 4 employees: The CEO, a single designer and two “young employees”. Here is how the writer describes the two brands:
When traveling to my first interview I was rather confused when the address I had been given led me to a dingy Osaka neighborhood literally straddled between two sets of train tracks. The only buildings in the area were shabby old apartment and condominium complexes. Having spent most of my time in Japan in immaculate Kyoto I was rather disconcerted. I looked at the condominium complex, then back at the address I had been given to see that they did indeed match. I carefully approached the entrance and to my relief saw “Mary Magdalene 3F” written in katakana on one of the mailboxes.
After being buzzed in I rode a dingy elevator to the third floor and was led by a young woman, whom I would later learn was the designer Tanaka Reiko, to a tiny kitchen that had been converted into an office. I had dressed in a suit for the interview, but Tanaka herself wore a classy but plain jumper. They can’t be making a lot of money, I thought to myself.
Working at Mary on a weekly basis I realized that the spirit of thriftiness I had experienced at that first interview extended to every part of their operation. Despite the illusion of luxury exhibited in their products there was no room for extravagance on the business end. They would usually only produce around 50 of each item, but each item would be impeccable. A staff member would personally inspect each product, remove lose threads, and iron it before it shipped out. The staff salaries were quite low. The starting salary at the time was JP¥700 an hour (US$8), and even the CEO could not have been making much. He ate sack lunches, shopped for used clothing, and rode his bike to work every day.
Although Baby has larger operations than Mary, they encounter similarly high production costs and rely mostly on staff dedication to make ends meet. There were moments when I was amazed they could afford to stay in business ,and it was clear that everyone working there, including the CEO and designers, were not in it for the money. Although the company spent considerable sums on marketing and goodies for their customers, they kept their labor costs very low. The average salary for a shop staffer was JP¥800 (US$9) an hour, and the highest paid workers were only paid JP¥1000 (US$10). These girls’ frugality was astonishing. It was as if these girls lived and breathed for the clothes. Although some of them still lived at home with their parents, the majority of staff I met and worked with lived on their own and supported themselves. Even with a steep staff discount the clothes at Baby were expensive, but the girlsLolita: Dreaming, Despairing, Defying by Terasa Younker
would buy an item they liked even if it meant their cell-phone service was cut, which actually happened once or twice when I was there.
The picture this paints, of 4 people working in a dingy apartment is miles away from what I think a lot of people imagine when they imagine lolita brands in Japan.
Mary Magdalene has a statement on their site, that talks about their work being copied and how upset they are about it. This part in particular sticks out:
Which basically says they are upset that their designs and photos are being stolen, and they have directly contacted Milanoo, etc, about it, but because it’s overseas they can’t really [afford] to do anything about it.
Mary Magdalene hasn’t produced much at all in the last couple years, and I can’t help but wonder if the proliferation of copy-cat Mary Magdalene items at half or less of the price is a significant factor in this. When it’s a passion project, it’s easy for discouraging things to dampen the passion. Recently, they did a collaboration where they were having items manufactured and it fell through due to quality control issues.
I think there is a huge demand in the lolita community for good, strong design work, and I think that is an area where Mary Magdalene has always excelled. But at the same time, I think there is a large segment of the community who wants the design work of the “masters” so to speak, but they aren’t interested in the price point those items come at.
Realistically, I don’t see Mary Magdalene existing as a brand anymore at all in 5-10 years. It’s not entirely clear if they even consider themselves to still be active right now. The interview above was 9 years ago, and they seem to be skipping this season, and it won’t be the first season they have produced nothing, or least, nothing sold online.
As for Ekaterina, it doesn’t seem to be going away anytime soon. A knock off of it is featured in the popular phone dress up game Love Nikki, and the drawing in the game has spawned cosplay costumes. Additionally, people who have never heard of Mary Magdalene, have, on multiple occasions seen knock offs of Ekaterina on Wish or Amazon and posted them to Love Nikki groups on various platforms. An Ekaterina knock off has also been sold as a bagged Halloween costume.
If Mary Magdalene only made 50 copies of the dress, even with multiple re-releases, I’m certain that knock-offs have outsold the original dresses many times over. There is something deeply ironic about a piece made by a brand with hyper stringent quality control becoming an iconic example of an “ita” cosplay lolita dress.
Plastering a piece with logos or custom art can help minimize this effect, but it only goes so far. After all, Innocent World released a cute sailor JSK with their name and some little wings embroidered across the back of the collar for 19,800 yen… and Bodyline immediately knocked it off, simply omitting the embroidery and changing how many stripes there were in different areas. It’s weirdly listed on the bodyline site twice, at different price points right now  , and it’s not clear why, though I suspect it’s because they have already re-stocked it once, and the cheaper one is remainders of the first run. Either way, it’s listed at a max price of 5,499 yen, but one of the listings is as cheap as 947 yen. That’s basically $9. How many pieces of the same thing do you have to sell that you can afford to sell a piece for $9 and run a brick and mortar shop with employees? Even at the higher $30 price point on the other listing, that’s incredibly cheap.
At the end of the day, I think we have to ask ourselves, why do we love lolita? And if part of what we love about it is the design work of the talented designers behind some of the most influential lolita fashion labels, then I think we need to seriously think about if it’s ethical or not to buy knock off versions of their designs, and what that will mean long-term when it comes to the longevity of some of these brands.