Backstage at New York Fashion Week, it's about to get a little more crowded -- and potentially a lot healthier & happier.
"I've got friends with copied pieces," says Philo. "My mum's even got a knockoff bag!"So far, predictable. The standard "cool" designer response to copying is always to invoke the f-word. ("Flattered," of course.) She's even got her Coco quotes down.
"I love it," she says. "I'm nothing but flattered." Like Coco Chanel before her, Philo feels that when you are not being copied, "that's when it's time to worry."
Counterfeit Chic has had several inquiries from fashion folks uncertain about what Instagram's new terms will mean for them. If the terms as written take effect on January 16, will Instagram have the right to sell their names and likenesses without permission? Would it be possible for a brand to use a model in an ad without paying a fee? Could a competitor legally copy a photographed design or trademark?
Although Instagram --or its PR team -- insists that it never intended to do any of these things, the fashion community has a legitimate basis for concern. There are plenty of instances where companies felt free to exploit others' names and likenesses without permission or payment, so why trust a company to respect your rights when its lawyers expressly take them away?
Better watch out ...
As South Park cleverly noted in its classic (albeit crude) episode on iTunes updates, most people don't bother to read online terms of service. However, the announced changes to Instagram's terms illustrate why this can be a big mistake.
Posting a photo on any social network site raises at least three significant legal concerns:
Ordinarily, U.S. copyright law protects photos, and a patchwork of state laws recognizes each individual's right of publicity, limiting the use of your name or likeness without permission. But accepting terms of service like Instagram's can wipe out those legal protections with a single click.
What's naughty and nice
For anyone wishing to keep control the rights in material on Instagram, the first four paragraphs in the section entitled "Rights" raise substantial problems.
This year's Cyber Monday may be merely part of a cyber shopping season -- for the first time over half of American consumers shopped online during the holiday weekend -- but one thing hasn't changed: the counterfeiting conundrum we might call "cyber shrinkage."
According to an eye-opening new report from online brand protection firm MarkMonitor, one in five online bargain hunters lands on sites selling fakes instead of legitimate discounted merchandise. These aren't the shoppers deliberately looking for counterfeits or "replicas," mind you -- these are shoppers using search terms like "discount," "clearance," and "outlet." It turns out that honest bargain hunters are demographically almost identical to their counterfeit-seeking cousins in terms of education and household income, but there are 20 times as many of them. That adds up to a lot of otherwise savvy sale shoppers diverted to sites selling counterfeits. Even worse news for brand owners: sites selling fakes are sticky. Shoppers stayed longer and were more likely to place counterfeits in their shopping carts, potentially believing that they'd simply found discount deals.
Once more unto the breeches, dear friends, once more!
"How do you keep reinventing?"
"You copy," he said. "Forty-five years of copying, that's why I'm here."
In an effort to stanch the flow of red dye onto the soles of competing YSL shoes, Louboutin not only filed a lawsuit back in April but also asked the court for a preliminary injunction against unauthorized use of his trademarked red soles. YSL fought back with references to red soles from Louis XIV's heels to Dorothy's ruby slippers to examples from its own archives, claiming that no cobbler can corner the market on red -- and that the Louboutin trademark is thus invalid.
Today's decision from Judge Victor Marrero, while merely the denial of a preliminary injunction, fell decidedly on the side of YSL -- though the ultimate outcome of the case remains uncertain. And even were Louboutin's trademark to be canceled in the U.S., the red soles were declared "distinctive" and thus eligible for protection in Europe just two months ago.
More significant from the perspective of fashion and intellectual property law is the analogy that guided the court's decision. Fashion designers often rely on trademark law for what little legal protection they have in the U.S., as patents are typically unattainable or impractical and copyright law specifically excludes fashion designs. Useful articles are categorically excluded from copyright protection, and the Copyright Office has consistently taken the position that articles of apparel are useful.
Judge Marrero, however, hung his order on the hypothetical example of Picasso attempting to prevent Monet from using the color blue in the Water Lilies series because the color had been Picasso's hallmark during his Blue Period. Unthinkable from an art history perspective, of course. The court acknowledges that no analogy is perfect -- but then goes on to claim that both painting and fashion design exist in the overlapping spheres of art and commerce, and that neither is well served by individual monopolies on color.