What’s in fashion? The Fashion Art Dichotomy, Copying and the Design Practice of Referencing

“Today, under the postmodern rubric of ''referencing,'' copying flourishes so openly that nobody bothers to question it.” -  Fashion Critic Cathy Horyn

"Fashion is not something that exists in dresses only; fashion is something in the air… you feel it, you smell it. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, [and] what is happening [now]. " - Coco Chanel

To the left Céline SS|2014 and to the right Primark SS2014

I thought it quite fitting to preface today’s blog with two quotes on fashion that help ground my discussion on the distinction between trends and design copying. Last week, I came came across the above top and skirt from Primark [right] with oversized artistic brush strokes and Brassai Graffti references that bears a shockingly similar resemblance to the one seen [left] on the Celine SS14 catwalk during Paris Fashion Week.

As a researcher that looks into the business and culture of fashion and intellectual property I came across a very similar top whilst in Zara London last week.

Celine SS14 [left] v Zara SS14 [right]

This got me thinking about the relationship between intellectual property and fashion again, but particularly raises the question of the distinction between close copying on one hand and participation in common trends on the other hand. Goods that are part of the same trend are not necessarily close copies. Rather, they may be efforts to meet the need of consumers for differentiation.

The trend for this SS14 Spring/Summer 2014 runway collection certainly seems to be seems to be ‘playing to the gallery.’ This season the hottest prints are inspired by art, from Chanel, to Prada to Jensen. The catwalk designers this season seem to have brought about a revival of the expressive art movements of the 1900's; cubism, surrealism and fauvism. Picasso (Cubism), Andre Derain (Fauvism) and Salvador Dali (Surrealism). The abstract portraits stretch the boundaries of printed fashion. The fashion referencing of these movements has trickled down and taken hold both on the streets and with the fashion elites.

Prada’s 2014 collection saw and ode to Pop Art, we saw elements of early twentieth-century art styling’s of Picasso and Mondrian in the prints for Alexander McQueen spring 2014

Prada's street-art designs for SS14. Photograph: Giuseppe Cacace

As researcher of fashion art history, culture & intellectual property the emergence of this trend is extremely fascinating for me, and I find it particularly interesting to see the artist references into the trajectory of culture for the fashion prints we see springing up on the runway. It also raises that oft debated question of ‘fashion as art.’ Although many fashion designers will deny that fashion is art. (Prada, Karl Lagerfeld, Marc Jacobs, Coco Chanel). As Lagerfeld told the New York Times in 2008, “Art is art. Fashion is fashion. However, Andy Warhol proved that they can exist together.” The current trends highlight where fashion and art meet. Fashion does not merely translate the functional, it goes beyond this. It is a creative practice that involves thought, imagination, and often pushes the traditional boundaries of design, both in terms of materials and also aesthetics. Clearly here, just like art, these prints would be protected by copyright, if commercially reproduced.

In terms of the way fashion influences art, and art influences fashion Jean-Charles de Castelbajac's illustrations below take clear inspiration from Matisse's bold, fluid outlines and the cubist nature of Picasso's portraits with disjointed and disproportionate facial features.

Jean-Charles de Castelbajac's Spring/Summer 2014 collection.

Pablo Picasso (1881-1973).

Henry Matisse (1869-1954).

Zara SS2014 seems to have also caught onto the Zeitgeist. This is another one of the dressed I saw in Zara whilst browsing last week. 

Interestingly too, many of the editorials capture the Zeitgeist of this trend, aside from the runway collections; surrealism also seems to have been making an appearance in fashion photography. With magazine editorials depicting drawn on facial features, Graffiti, and art in action, seems to be a classic example of art imitating life, and life imitating art.

'Lister's Lady' Janice Alida by Emma Summerton for Vogue Australia March 2014 [Editorial]

by Richard Burbridge for Harper’s Bazaar US March 2014 Issue

‘Wild at Heart’ by Richard Burbridge for Harper’s Bazaar US March 2014 Issue

Did Moschino’s Debut Fashion collection Dilute McDonald’s Trademark? An EU & US perspective

Drawing a comparison between fast food and fast fashion, Moschino's new creative director, Jeremy Scott, took inspiration from McDonald's for his debut runway collection during Milan Fashion Week. The capsule collection that is being lapped up faster than you can say ‘milkshake with fries,’ turned McDonalds Golden trademarked arches into a curved heart-shaped 'M for Moschino and, weighing in at more than just a few pounds, Moschino's red, happy meal style quilted leather bags, served up on a red tray have already sold out at a price of $1,265.

Nonetheless, despite the success of the debut collection, the striking iconic trademarked references used, in particular left many of us questioning whether there were any legal implications for trademark dilution or infringement. This legal academic, after Anya Hindmarch supermarket sweep ‘counter culture couture collection’ at London Fashion Week, had been given serious though to the legalimplications of Andy Warhol style pop culture references used in fashion, and on this very topic, this week over at the Business of Fashion, a very interesting and well written article  by Toronto based lawyer Anjli Patel addressed just that… ‘did the house dilute McDonald’s famous trademark?

Focusing in particular on Moschino’s use of the ’M’ logo and colours across their collection, in her article written from a US perspective, Patel notes that: “in the United States, where McDonald’s is headquartered, the owner of a famous mark that is distinctive (in this case McDonald’s) has recourse against another party (Moschino) for using a mark in a commercial context that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of whether any confusion, competition or actual economic harm occurs.”

Trademark dilution prevents others from using a mark in a way that would lessen its uniqueness. On the legal concept of dilution, Patel highlights that: “Dilution by blurring occurs when an association arising from the similarity between a mark and a famous mark impairs the distinctiveness of the famous mark, [from being identified as the a single source of its goods and services]. The law lists six factors that a court may consider in making its decision. One factor is the degree of similarity between the mark and the famous mark. For example, other than curving inwards the colours, scale and style of the heart-shaped motif are very similar, if not identical, to the Golden Arches.” Another factor “is whether the user of the mark intended to create an association with the famous mark…because of how the heart-shaped motif [is] presented in the show. [For example] applied to[the] handbag, which is placed on a fast food serving tray.” Coupled with fact that Moschino’s Fall/Winter 2014 collection is titled "Fast Fashion - Next Day After The Runway," drawing an association with fast food. The suggestion seems likely.

Putting US law aside for a moment, under European law McDonald would also be entitled to prevent Moschino from using the "M" Golden arches trademark because of their reputation in the Community, According to EU law use is prohibited if the unpermitted use “is detrimental to the distinctive character or the repute of the trade mark” or “takes unfair advantage of” the mark. In both the US and EU a dilution claim would most likely be successful, as it, unlike trademark infringement, does not require a showing of a “likelihood of confusion” amongst consumers, and it seems unlikely that most consumers are going to associate or confuse McDonalds with high fashion.

Yet, this is all speculative as no actual legal proceedings have been brought, and it seems that no legal proceedings are likely to be brought the Goss-IPgirl came across a series of tweets by McDonalds that appear to be endorsements from the fast food chain, that puts to bed any concerns about legal proceedings.

The fast food company posted an image from the Moschino show to its Facebook page, along with the following comment: “Looking good, MOSCHINO! Milan Fashion Week has never been so stylish.” 

The company also tweeted from the McDonalds official twitter page at ElleMagazine with the comment “the new fashion trend is spreading fast round here too.”

And also tweeted a comment (later retweeted by Jeremy Scott) “Do you ever look at yourself in the mirror and think, this outfit is missing a #Bigmac.”

Food for thought? I think it’s easy enough to answer that question. 

Even though no legal proceedings have been brought, it is noted that if legal action were to be taken, Moschino may be able to rely on the defence of parody, “something which has artistic merit and critical function, and is covered by law. But in the US as “the law does provide that a parody is an exception to dilution, but only if the defendant does not use the parody as a designation of source for its own goods and services. In other words, the exception does not apply when a parody is used as a trademark, and this is exactly what Moschino has done.”

In the EU & UK the law has less of a sense of humour? And under trademark law there is no defence of parody. The fact that a sign is a parody is not a specific defence to trade mark infringement under UK law, and a parody of a trade mark may also be infringing under s 10(3) of the UK Trade Marks Act 1994 if it causes trade mark dilution, or the ‘tarnishment and blurring’ of a trade mark.  This occurs when a similar sign has taken unfair advantage or caused detriment to a well-known trade mark. Lady GaGa v Lady Goo Goo, 2011 EWC

Sources: www.businessoffashion.com/2014/03/moschino-dilute-mcdonalds-trademark.html

http://www.slaughterandmay.com/media/1650943/lady-gaga-v-lady-goo-goo-a-web-based-  trade-mark-clash-applying-interflora.pdf

BUSINESS OF FASHION – BALENCIAGA VS. NICOLAS GHESQUIERE TRIAL DATE SET IN PARIS

A couple of days ago the trial date was set for Balenciaga's lawsuit against Nicolas Ghesquière for breach of contract. The business of fashion is a complex game and the Goss-IPgirl has been intrigued by this case, which involves an action for breach of confidentiality after the he spoke negatively about the fashion house in a magazine interview.

Nicholas, now the new creative director of LMVH, was at the top of the French fashion house Balenciaga for 15 years, when the brand announced last year that Nicolas Ghesquière was leaving. Revealing his reasons in an interview to System Magazine. Ghesquiére said:

'It was around that time that I heard people saying, ‘Your style is so Balenciaga now, it’s no longer Nicolas Ghesquière, it’s Balenciaga’s style.’ It all became so dehumanised. Everything became an asset for the brand, trying to make it ever more corporate – it was all about branding. I don’t have anything against that; actually, the thing that I’m most proud of is that Balenciaga has become a big financial entity and will continue to exist. But I began to feel as though I was being sucked dry, like they wanted to steal my identity while trying to homogenise things. It just wasn’t fulfilling anymore.'

The Goss-IPgirl notes that although freedom of expression exists in French law, certain limitations are prescribed by law, especially in instances where an employee or former employee tarnishes the image of an enterprise. According to court documents these comments violated the “separation agreement” that Ghesquière signed on October 17, 2012, which said that he 'refrain from declarations that could hurt the image of Balenciaga.' Lines mentioned in the lawsuit include, 'I feel as though I was sucked dry' and 'they wanted to steal my identity.'

The court document says: 'Balenciaga didn’t want its designer to justify his departure by criticizing the house that employed him. In general, the parties, knowing the hypersensitivity of the fashion industry to changes in creative direction, were forbidden from commenting on the break in order to avoid any detrimental effect on their economic interests or their image.'

The court documents also say that, Balenciaga is seeking damages of 7 million euros over the interview in System magazine. And also, according to the filing, Ghesquière was paid 6.6 million euros as compensation for breaking his employment contracts, signed in 2010 and 2012.

The hearing will take place in in the Tribunal de Grande Instance of Paris on July 1st to the hear oral arguments of this civil law case. This could be an interesting one for both freedom of expression and contract law, so let’s watch this space.