Danielle Bernstein and Christina Viviani grew up leading parallel lives: fashion-obsessed teens from the suburbs fantasizing about haute couture careers in the big city. From Long Island and Detroit, respectively, they moved from lowly fashion-closet internships to partnerships with some of the world’s biggest designers. They both attended the It-girl mecca Fashion Institute of Technology, where Bernstein, then a burgeoning fashion blogger, was briefly a fan of Viviani’s first underwear line. Now, their paths have come crashing together in a legal battle that has spawned tabloid headlines and raised questions about what, exactly, it means to be an original.
Bernstein is better known to her millions of fans by her Instagram handle, WeWoreWhat, a massively popular account where the glossy-haired 28-year-old meticulously documents all of her trendy outings and outfits. As an early fashion blogger, Bernstein helped pioneer the role of influencer, definitively proving the power of envy to drive clothing sales. But as a designer, she is arguably less innovative: Over the last four months, she has been accused no less than five times of ripping off other creators’ designs.
That’s where The Great Eros comes in. After her own stint at FIT, Viviani turned to designing—first, for major fashion labels like Donna Karan and Adrienne Vittadini, and later, after a life-changing car accident, for herself. In 2016, with the help of her husband and fellow fashion veteran Emilio Ramirez, she launched The Great Eros, a lingerie company and “modern love brand” that sources its materials from sustainable farms and stitches its garments in Italy. The brand is a favorite of celebrities like Scarlett Johansson and Zoë Kravitz and is, according to New York magazine, “a cult hit among shoppers seeking a sex-positive, sophisticated source for lingerie.” Its three brick-and-mortar stores sell lingerie, loungewear, and specialty items like Japanese vibrators, paraben-free lube, and something called an “Obsidian Massage Stone.”
The Great Eros prides itself on originality, which is why Viviani was surprised to get a flood of messages in August asking if she was collaborating with Shop WeWoreWhat, the fast-fashion label Bernstein created as a catchall for her various clothing and accessory lines. Confused, Viviani checked Bernstein’s Instagram page to find advertisements for a line of swimsuits covered in black-and-white line drawings similar to those featured on The Great Eros’ signature tissue paper. (Bernstein and her attorneys have vehemently denied any claims of design theft.)
“My stomach dropped,” Viviani said of the moment she saw the post. “We were pretty devastated, as a brand, as founders, as people who have committed our life to doing this and to working our asses off to do it.” She added: “It felt very personal.”
At the same time that people were messaging Viviani about the design, they were also posting similar comments on Bernstein’s photos. The influencer never responded; instead, Viviani says The Great Eros was temporarily barred from commenting on her photos at all. The brand posted on its own Instagram about the controversy, but if Bernstein saw it, she never replied.
Eventually, Viviani turned to Jeff Gluck, an aggressive intellectual property attorney known for defending street artists against large corporations. (While artists have heaped praise on Gluck, companies like Mercedes Benz, whom he has accused of stealing artists’ work for Instagram posts, describe his suits as a “shakedown attempt.”) Together, they attempted to approach Bernstein and her attorneys about a solution. But in the weeks that followed, Bernstein continued to roll out items with the black-and-white print: leggings, a yoga mat, even peel-and-stick wallpaper. At a certain point, Viviani said, it started to feel malicious.
“At first it felt like it could have been a mistake,” Viviani said. “But then when she kept going with it it was like, ‘OK, no, this is intentional.’”
In his previous work, Gluck said, these kinds of disputes were often resolved quietly, and out of court, with the accused party abashedly offering up a compromise—perhaps an offer to remove the offending item and give the originator a cut of any existing proceeds. But that is not what happened here.
Instead, in October, after months of unproductive back-and-forth, Gluck threatened to sue Bernstein if she did not stop production. He says the influencer’s attorneys promised to get back to him that day, but instead, without warning—and in a dramatic move that would skyrocket the story to the pages of fashion magazines and tabloids alike—Bernstein’s attorneys marched down to the courthouse and filed a suit of their own, against The Great Eros.
Christina Viviani is a difficult person to have sympathy for. Her Instagram is dotted with photos of beautiful getaways and her ruggedly handsome husband; their wedding registry is full of $330 coffee makers and $125 hand soaps. A single pair of underwear at her shop can cost more than $60.
But for that matter, so is Bernstein. Raised by an upper-middle class family in the Long Island suburbs, Bernstein took a single-year sojourn to college in Wisconsin before returning to New York and shimmying her way up the Manhattan social ladder. In her book, she attributes her success as an influencer to being in the right place at the right time, and to working her “pilates-toned ass off”—not to the good fortune of landing a fashion internship through a family friend, or having a father to pay for her spacious apartment in the West Village when she dropped out of yet another college.
The rest of Bernstein’s book, the New York Times bestselling This is Not a Fashion Story, is largely a list of cool parties she went to and hot men she dated—a chronology she continues on her Instagram stories to this day. This summer, Bernstein couldn’t help but brag about attending star-studded soirées in the Hamptons amidst the global pandemic. After one particularly galling gathering, she attempted to clarify that every single person at the party had been tested for the coronavirus before entering—a claim that was neither easy to believe nor, in the midst of a testing shortage, remotely relatable. Weeks later, after yet another maskless Hamptons party, she was diagnosed with COVID-19.
While Bernstein’s personal life has always been controversial—and thus an endless source of fascination for her followers—her professional life came under scrutiny for perhaps the first time in 2018. At the time, Bernstein had just launched her first jewelry collection in collaboration with the jewelry designer Lulu de Kwiatkowski. Days after the collection debuted, social media sleuths unearthed pieces from several smaller designers that looked notably similar to Bernstein’s own.
One of the designers, Beth Bugdaycay of Foundrae, publicly accused the influencer of making “complete copies” of her work. She claimed Bernstein had visited her house a year earlier to see her jewelry and had subsequently borrowed pieces from her several times. “How is it not personal when you let a person into your home, let them wear your pieces, and then she knocks it off??” Bugdaycay wrote on Foundrae’s Instagram. “It's an abuse of privilege, taking advantage of access.” Bernstein responded on Instagram too, calling the accusations “devastating,” “vicious,” and “based on misrepresentations,” but agreed to pull several pieces from the collection.
Just this summer, Bernstein was again offering explanations via Instagram story—this time for allegedly ripping off an even smaller independent label called Second Wind. The brand, founded by Latina stylist and designer Karen Perez, debuted a line of linen face masks with detachable gold chains on June 1. In July, when WeWoreWhat rolled out a strikingly similar series of face masks, the fashion gossip account Diet Prada posted screenshots of Bernstein’s direct messages with Perez, in which she appeared to ask for samples of the designer’s product a month before launching her own.
From the screenshots, it seemed obvious that Bernstein had borrowed product from—then blatantly copied—a small designer and woman of color. The backlash was swift. In comments on the Diet Prada page, posters called her “disgusting” and “abhorrent;” others vowed to unfollow her. (Bernstein later enlisted her lawyers to send Diet Prada a cease and desist, which they ignored.) In August, Rep. Alexandria Ocasio Cortez visited Perez’s studio as a show of support, though whether it was related to the Bernstein blow-up is unclear.
Bernstein, for her part, posted another emotional Instagram story about how the accusations had led to harassment and death threats. Then, in a series of screenshots, she attempted to prove that she had emailed with her team about the design concept even before Perez’s product launched. “A chain on a mask is not an original concept and I've never claimed for that to be my own,” she wrote, before announcing that she would donate all the proceeds of her mask sales to charity.
But the allegations of stealing didn’t stop there. That same month, Bernstein posted a photo of a pair of “vintage” shorts that she said she had bought on Etsy, boasting that she was going to remake them and sell them herself. When the designer of the shorts—which were decidedly not vintage—saw the post, she was shocked. Designer Grace Corby told The Daily Beast she tried to give Bernstein the benefit of the doubt, since most of the items she sells in her Etsy shop are vintage, but grew more concerned when she learned about the other allegations of copying.
“We all know fashion often references vintage, so I'm not sure why my pairs were chosen as a template and not a true 90s gym short,” she said in an email to The Daily Beast. “Imagined impunity? Misunderstanding? I have since been told that this kind of thing has been happening a lot with hers and other big influencers' processes, which is a shame for small businesses.” (Bernstein later said she “sincerely thought” the shorts were vintage and vowed not to reproduce them, but has not credited Corby’s shop.)
Reached by phone, Perez of Second Wind declined to comment on her own controversy with Bernstein. She said she just hired new employees and moved to a larger building on the strength of her mask sales, and didn’t want to jeopardize that.
“I’m really afraid,” Perez said, in the brief time she stayed on the phone. “I am afraid that if I say something, she will come after me.”
Designers have been stealing from each other since the dawn of haute couture. In the early days, boutiques poached designs from the Paris runways and recreated them for a local audience; these days, fast-fashion companies have made an empire out of it. But it’s not always the big fashion houses that get ripped off. Companies like H&M and Zara have been sued countless times for appropriating smaller creators’ work—remember that “Raising the future” T-shirt that Old Navy was accused of stealing from a young mom?—and even major labels like Chanel have had to retroactively credit independent designers. In some ways, experts argue, this is good for the business—it drives innovation and pushes creators to be constantly producing something new. It’s also the nature of fashion: If you make something lots of people like, it becomes a trend, and starts popping up in other stores faster than knock-off Juicy sweatsuits at a suburban shopping mall.
It is also, for creators who throw their time and money into original designs, endlessly frustrating. Every Great Eros design, for example, takes nine months to a year to create. It starts with the fabric—Viviani’s “passion,” and her area of expertise at Donna Karan—then moves onto anywhere from two to seven rounds of testing for fit, strength, and comfort. The last step, production, takes three to four months, and takes place in Italy, in small, family-operated factories. Most of the suppliers she works with are less than two miles from each other, Viviani said, and she often shares dinner with them when she visits. “We like to think of it as the farm-to-table of intimacy,” she said.
The whole business is expensive, and extremely financially risky. (Viviani has said in previous interviews that she sunk her entire 401k into launching The Great Eros.) The only payoff is when you develop what Bugdaycay, the Foundrae designer, calls a “voice”—a style so unique, so identifiable, that it instantly reminds consumers of your brand. When someone borrows your design elements, it cheapens that voice; makes it ubiquitous. “Everybody says, ‘Oh, but you can just design something else,’” Bugdaycay said. “But what people don't realize is you can't change your voice.”
Social media has turbocharged the problem. Instagram and Facebook allow designers to get their products in front of more potential customers, but also more potential thieves. Online marketplaces like Amazon and Etsy are veritable free-for-alls for knock-off products made in bulk, for cheap. Just go on Etsy and search Marla Aaron, the designer of the trendy, $500 “baby lock” necklace, and you will find dozens of sellers hawking similar items for more than $400 off the asking price.
“Everybody is combing Instagram, looking for a great design by someone they feel is unknown so that way they can poach the design,” Bugdaycay said. “The very tool that designers and creators use to get their product out is also the tool that ultimately can sabotage them.”
Danielle Bernstein, center, with society chronicler Olivia Perez and singer Meghan Trainor in the front row of the Sally LaPointe show during New York Fashion Week last year. :
John Lamparski/GettyBernstein has vehemently denied any and all allegations of copying. In her Instagram stories, she said she conducted a “full internal investigation” of the black-and-white design and found that none of the parties involved had access to The Great Eros’s tissue paper. She called Gluck’s proposed lawsuit an “attempt to push us to settle a meritless claim” and said she was “ABSOLUTELY NOT seeking financial gain” through her own filing.
“It makes it all the more hurtful to hear more claims of copying from independent designers whose work I have never seen before now,” she said in a text post this summer, even before the lawsuit was filed. “These accusations are also false and unwarranted. I in no way want to disrespect anyone else’s work or creations, but I have the right to defend myself while others try to discredit me and my business.” (Through a spokesperson, Bernstein declined several requests for comment from The Daily Beast.)
In legal filings, Gluck and Bernstein’s attorneys go back and forth about the details of the design in question. Can someone really claim to have ownership over a pattern that was itself inspired by the work of Henri Matisse, and has become almost a cliche in products tailored toward artsy, Brooklynite women? (Maybe not all such prints, Gluck argues, but this specific one has more than 30 similarities.) Was Bernstein even aware of The Great Eros’s design when she rolled out her product? (Her lawyers say no; The Great Eros has produced documents that it says prove she visited its showroom.) In today's world of endless options, can anything ever be truly original?
In his court briefs, Gluck describes the issue as one of “trade dress,” a legal term for a design so identifiable that people instantly link it to the brand. In conversation, Viviani describes it in terms of the “confusion” that customers felt when seeing what they thought was her company's design on Bernstein’s Instagram. But perhaps the most resonant way to frame it is in Bugdaycay’s concept of “voice,” and the feeling—like Ariel being bewitched by Ursula—when it gets taken away.
“When all of a sudden someone tries to take your voice, it's just such a violation,” Bugdaycay said. “Because instead of feeling that moment of reprieve, where you think you're going to be able to create forever, suddenly there's a real expiration date in front of you, because your voice that you carefully honed is going to feel ubiquitous.”
“If all of a sudden you're afraid to impart your voice to your next design because it looks too similar to your last, which is now all over Macy's in the discount aisle,” she added, "you're frozen."
Christina Viviani at the opening of The Great Eros in New York City in 2018.
Ben Gabbe/GettyTwo weeks ago, The Great Eros finally filed the suit it had been meaning to file in October. In it, the company accuses Bernstein of both copyright and trademark infringement, arguing that her use of the black-and-white design “diminishes the distinctiveness of Plaintiff’s work and brand, negatively affecting its ability to connote a single source of Plaintiff’s products”—essentially, stealing their voice. (An outside attorney told The Daily Beast the copyright claim would be “hard to prevail on,” given the “obvious differences in the designs,” but that the trademark claim may be more successful.)
For a moment, it looked like the Instagram warfare was over, and both sides would retreat to the relative banalities of the court. But then, just last week, another designer came forward to allege that Bernstein had ripped off one of her designs—a piece that Bernstein had purchased, raved about online, and worn to Paris Fashion Week in 2017.
The piece from Grayscale, a Los Angeles-based fashion line, does indeed look similar to that featured in Bernstein’s upcoming holiday collection—a black, peplum, high-waisted skirt with structured piping down the front. But then again, in a world of high-waisted black skirts, so do many others. The designer, Khala Whitney, admitted that she had had this exact same design stolen before. “That’s fashion, it’s not like this is new for me,” she said in an interview.
But what made the difference this time around, Whitney said, was hearing about all the other brands that Bernstein had been accused of ripping off. The final straw, she said, was when Bernstein watched an Instagram story in which she complained about the alleged design theft and did not respond. “I guess it’s really just more so her audacity,” Whitney said. “For someone like her to think she can just come in and take it and think nobody’s going to notice, it’s just, wow. The nerve.”
Gluck, in his interview, said something similar. Design theft is nothing new in his business, and not always something to get upset over. Mistakes happen, and are often resolved with a simple apology. But the problem is with repeat offenders, and particularly those that refuse to take responsibility for their mistakes. “The only reason everyone is talking about this right now is because [Bernstein] sued,” he said. “It was such a miscalculated decision that has blown up in her face in an extraordinary fashion.”
Bernstein may have foreshadowed as much in her own book, which was released earlier this year. Not in the part where she writes that “getting lawyers involved to sue will almost always end up costing you more than you gain,” though that certainly seems relevant. But the part where she writes that “mistakes are going to happen and that's ok, because they will make you smarter and stronger.”
“It’s not the error that matters,” she writes. “It’s what you do next, how you grow, that defines you as an entrepreneur.”
