From the Fashion Runway to Forever 21: The Implications of Social Media and Fashion Brands
Buyers, bloggers, and the press have flocked to New York City for #newyorkfashionweek #nyfw. The runways were once extremely exclusive and invite–only. However, with the rise of social media and instant uploads, the world of fashion brands and designers have joined the trend and have given anyone in the world with Internet, access to front row seats.[youtube=http://www.youtube.com/watch?v=ERTaDoNeg7g]
The Life of a Season
While most of us are packing up our winter coats and boots in anticipation of spring, the world of fashion is debuting their fall/winter 2014-2015 collections. There are typically 2 major seasons for any fashion label: Fall/Winter and Spring/Summer.
Designers of a label start their seasonal journey with an inspiration board to which they base their sketches for the season from — making sure what they design is trend-setting, marketable, and will be ‘in’. Designers either seek sample fabric or have special fabric designed and all their trimmings from various manufacturers from all over the world. Designers then cut and sew the carefully chosen fabric for their sample collection.
Sales representatives take the sample collection to retail buyers, ranging from local stores to large departments stores. Based on the volume of orders placed, designers then begin the manufacturing process of their line. A great deal of effort must be made to ensure quality, quantity, and specifications to the retailer — if the order isn’t completed on time and to the terms of the contract, then the designer doesn’t get paid.
Each season of designing, sewing, manufacturing, and selling takes about 6-9 months. In short, a great deal of time, preparation, and planning goes into each and every single collection before a fashion brand realizes any profit. The extraordinary effort designers go through to design and sell their collection can be drastically undermined by knock-off manufacturers who use pictures from the runway before the original designs even hit the shelves.
Snap, Edit, Upload
The countless number of hours that designers spend trying to forecast trends and designing marketable collections culminate in 15-minute runway shows or presentations during fashion week. The gentrification of the fashion world has been transformed by the accessibility of technology by the masses. While audience members were once passive spectators, designers and the audience members now engage each other through various social media platforms. Buyers, retailers, photographers, members of the press, and others are all invited to take part in a designer’s spectacle. Today’s fashion is shown to the world, not only to the elite audience members of Lincoln Center, but to the entire world, with an instant snap, tag, and hashtag upload.
What Can and Can’t be Copyrighted
In general, articles of clothing do not have copyright protection — even the famous Yves Saint Laurent tuxedo. For example, a simple belt buckle would not have copyright protection because of its inherent functionality, but the interlocking Gucci belt buckle design (pictured below) would have trade dress trademark protection and copyright protection. The 9th circuit applies the Substantial Similarity Tests. Generally, courts compare the works to each other and examine whether subjectively and objectively the two works are similar; factors considered include, but are not limited to: subject matter, shapes, colors, materials and arrangements.
Fashion for One, Fashion for All!
Designers and their production teams spend countless hours coming up with a cohesive collection. A knock-off should not be confused with a counterfeit good. A counterfeit good is an imitation of a product, designated to be fraudulently passed off as genuine (pictured below). A knock-off closely resembles the original, but is not intended to be passed off as an original. In general, designer looks that debut on the runway that trickle down to different retailers are knock-offs.
The contention between a designer’s original ideas and knock-offs lie in their access. Should the law protect designers, and thus encourage designers to continue debuting innovative looks and designs, or should designers’ looks and trends be available to the masses at all different price points?
B*tch Stole My Look
An owner of copyright is entitled to recover damages from an infringer in an amount equal to lost profits. Before the surge of instant uploads, the manufacturers of designer knock-offs would have to wait some time before gaining access to the designs. However, the stakes are higher in this instanteous multimedia age. Now, manufacturers can produce designer knock-offs almost contemporaneously with actual designers of fashion goods and accessories.
Litigation is undoubtedly both costly and time-consuming. By the time a designer’s suit produces any fruit, the alleged knock-off is already ‘out’ and the next collection is underway. Other than specific items representative of the brand’s label and trademark, a designer’s ideas are in severe danger of being knocked-off.
In this era of instant access, designers have to pursue other angles. Designers must fortify their brand-value and presence, as well as their marketing to ensure consumers lust to choose their work rather than the knock-offs.
Fashion Law Symposium Hosted by Loyola Law School, March 22nd, 2014: