What Visual Ethnography can do for Legal Research on Fashion and Culture?

See SS14 Chanel multi coloured brush stroke dress [left] | SS14 Robe motif arc-en-ciel manches courtes from sheinside [right]

I’ve been thinking about the types of research methods I am employing for a cultural analysis of law across the field of fashion and more acutely what those research methods mean for lawyers, students and other academics engaged in socio-legal research. Visual ethnography is one of my research methods I am using for my PhD research, not least because I like pretty things, but because it sits outside the box, of the many research methods, that academics in the legal field commonly draw upon and is rarely ever used in legal research, despite the many ways, especially IP law, engages with the aesthetic, signs, symbols and the world of images. Legal Scholar Rebecca Tushnet highlights in her essay: Worth a thousand words, the law outside the text this inconsistency; she posits that:  “Law, like most other disciplines or practices that aspire to rationality, has tended to identify that rationality (and hence its virtue) with texts rather than pictures, with reading words rather than ‘reading’ pictures, to the point that it is often thought that thinking in words is the only kind of thinking there is.”  I think as lawyers, academics and students in the field, visual studies can help us observe, discover and identify more acutely the (illegal) cultural practice(s) of copying which effectively is what copyright law seeks to regulate. Using the tools we have at are disposal is a much more effective way to open up and engage in more fruitful conversations about the future of intellectual property policies for culture in the creative economy.

Trademarks, Copyright and Pop Culture Appropriation During London, Paris and Milan Fashion Week

The Zeitgeist this year, across London, Milan and Paris Fashion week has certainly been pop culture, and if fashion enthusiast were hungry for something different, they got just that this season, with a super-size portion of mass-produced visual commodities of popular culture in a similar way to Andy Warhol’s Campbell's Soup Cans.

Each fashion week was inspired by the supermarket and based, at least in part on the concept of consumerism. In particular, designer Anya Hindmarch’s ‘Counter Culture,’ collection during London Fashion week made use of some familiar household names. Jeremy Scott’s collection for Moschino during Milan fashion week mixed fast food with ‘Fast Fashion,’ and Karl Lagerfeld's collection for Chanel, during Paris Fashion Week, took us to the 'Chanel Supermarket,’ through the Mise-en-scène and set of his fashion show.

Pop art culture, famous for doing away with the traditions of fine art by including imagery from mass culture such as advertising, film and comics; is an art movement that emerged in the mid-1950s in Britain and later in the United States, so the Goss-IPgirl finds it fitting that British bag designer Anya Hindmarch kicked off London Fashion week, with her interpretation of the supermarket, through her collection ‘counter culture.’ Couture.

She explains 'I wanted to treat the everyday ordinary in an extraordinary way.' But she did a little more than just that...

A variety familiar trademarks and images protected by copyright strutted their stuff down the runway, during the bag designers 1970s supermarket sweep. Daz, Frosties, Kellogs, and custard creams, vintage cereal boxes, icon symbols such as Ship matches, to bourbon biscuits were all used. In many cases the fashion designers products were identical to that of products from the original brand owner. For example, the package designs of Kellogg’s Tony the Tiger appeared on a blue background on a tote; Bourbon cookies were transformed into small metallic bags, while Ariel/Daz laundry detergent boxes were turned into clutches. In some cases the starting point for the bags was the shape of the packaging and a tube of McVitie's digestive biscuits was turned into a pencil case-like bag to imitate the shape and packaging of the biscuits; in others cases the logos, colours and symbols on the packaging were employed.

Pop artists are renowned for absorbing and borrowing from popular culture, but is any of this legal? Anya’s designs makes use of the brand names, trademarks and logos of well-known brands in all of her designs, leaving the Goss-IPgirl wondering about trademark and copyright infringement. The Goss-IPgirl is surprised that no one has picked up on this. It may be the case that Anya has a license to do this. But the Goss-IPgirl, does think that this is unlikely, or rather would be extremely pricey.

Trademark, licensing and product placement is big business for companies, one that many guard fiercely. So we wonder what the legal ramifications are of these designs? To mention briefly, there is the issue of trademark infringement and dilution by tarnishment or blurring. There are several criteria which must be reached before one can bring a successful claim for dilution. For example if a trademark's owner can demonstrate that use of the protected Trademark on the designs is going to cause the trademark owners’ mark to lose its distinctiveness as a source indicator, then a dilution claim may kick in.  As with the issue of copyright infringement for the images used and incorporated into the presentation of her designs.

In Milan, the theme of consumption continued also as Jeremy Scott at Moschino opened his first collection as Creative Director of Moschino with references to McDonald's signature logo, the legal implications of which have been addressed here. 

Kyle’s Pop culture for "consumer couture" was celebrated through haute couture gowns made with a fabric inspired by food packaging - from Budweiser to crisps, cereals, jelly bears, baked beans, cheesy bits and other assorted criminal delicacies in Tutti Frutti flavours.  And wedding gowns with prints of nutritional facts labels complete with additives and artificial flavourings, a sort of variation of Schiaparelli's signature newspaper prints. 

Whilst, Chanel over at Paris Fashion Week, built a Fake Supermarket Just to Host his Fashion Show with a ‘set’ that comprised of aisles and tables of every conceivable supermarket good, stamped with interlocking C’s.

Pop Art and fashion are starting to go hand in hand, designers today are generally criticised for stealing from native culture, but rarely criticised for borrowing from popular culture.  This leaves the Goss-IPgirl marinating on a few questions, for which there is no easy answers. Is this type of use free advertising for a company? Is economic or reputational harm caused to a brand through this type of activity? And is borrowing from popular culture legal? From a cultural standpoint, the Goss-IPgirl feels these popular culture references are to be celebrated. Even though there is the need for companies to police and protect their intellectual property perhaps more fitting than suing designers for IP infringement, is the notion that these pop culture references make for good advertising? Which from a brand management perspective may be more important to the profile of these companies than litigating for the unauthorised use of their IP.

Thoughts anyone?

Postmodernism and the Deconstruction of High Fashion

Youth culture – Intellectual Property and Fashion Parodies - The latest on Street Fashion, IP & Parody Tee’s

Saint Laurent, Chanel, Louis Vuitton, Céline, the Goss-IPgirl has been quite fascinated with luxury fashion parodies recently and its relationship with material culture and the law.  Notorious for their “remixing” of legendary brands, street wear designers such as Brian Lichtenberg has parodied Céline with Féline, Balmain with Ballin and Hermés with Homiés. Other streetwear brands, such as C.O.I. (Conflict of Interest) has produced Givenchy-inspired snapbacks and clothing with Giraunchy, Ballinciaga, Ill Slander, Bodega Vendetta among others. These street wear labels are said to ‘encompasses…artistic vision with subversive ingenuity,’ highlighting the interesting narrative between youthful consumption of highbrow design, postmodernism and the law.

Take a look at the brands SSUR parody statement pieces, by designer Ruslan Karablin, famous for Comme des f*ck down, the line , which plays on the name of the clothing label Comme des Garcons.

And Brian Lichtenberg spin on the success of the French luxury house “CELINE PARIS” t-shirt which retailed at $400 a tee, the fashion parody designers version “FELINE MEOW” retailed at only $60. 

These parody designers seem to be inspiring a whole creation of faux clothing with luxury appeal that has even been seen on the backs of celebrities such as Rihanna, Miley Cyrus, the Kardashians and Cara Delevingne.

(Famous fan Ciara "Ballin" for her "Body Party" music video)

But what’s the take with all these luxury parodies?

More than just a Trend?

The Goss-Ipgirl wonders if this has anything to do with the remix culture so prevalent in fashion, that uses the deconstruction of fashion as a form of free expression. Culturally, these streetwear trends present a fascinating convergence of luxury and affordability. In an excellent article in WWD by David Lipke senior editor at Conde Nast on the legal boundaries of designer parodies in Streetwear. Olivia Wolfe, the founder of American Two Shot, believes "it makes luxury accessible and at the same time it says, ‘F--k you, I’m going to rep this my own way.’ It’s a new form of luxury.” She goes on to say that the script of who influences who, the streets or the runways, has been flipped. Nowadays, the runways are inspiring street wear, and these parodies are mirrors to the big brands that have been taking inspiration from the streets for years.

In the Goss-Ipgirl’s eyes both these designers and the wearers seem to be following the live by fashionisti mantra, the fashion aphorism, idiom, and adage, coined by Coco Chanel ’ I don’t do fashion [darling], I am fashion.’  But even the Coco Channel brand has been subject to the new rise in street wear parodies. 

Practices of which have been embraced by a youth culture – that identifies with parody, remixing, and cultural hybridity which also raises some interesting questions on how youth culture is reinventing and responding to Capitalism.

Interestingly, while these postmodern designers culturally subvert the codes in order to make a statement. These practices also have something larger to say about the rise of postmodernism and sartorial fashion. (Postmodernism in fashion has developed over the past twenty years with designers such as Alexander McQueen, Vivienne Westwood and ironically Comme des Garçons). “Postmodern fashion is fashion that is aware of itself as fashion—or as art—and embraces that artificiality while actively subverting it for the sake of social or artistic commentary. To put it simply, postmodern fashion is style with something to say.”  However, central to this trend, are the legal issues of trademark protection — and what legal strategies designer brands should pursue to guard their logos.

Generally, street wear designers, like Lichtenberg, express esteem for the original labels and even gain support from the very designers they parody.  In an interview with Lichtenberg’s on whether he had heard from any of the labels [he had] riffed on? He put forward that "none have complained because the [designs] have all been in an uplifting manner and not derogatory." And that an order for his “Céline [Dion]” tees had even been placed for the entire crew at the genuine Céline showroom in Paris.

However, some brands haven’t been happy.

While some parody Tee’s has been welcomed by companies other companies have taken a hostile approach towards purported infringements of their trademarks. Italian luxury brand Dolce & Gabbana, Cartier, Louis Vuitton, and Saint Laurent have been the first to take a legal stand. For example Dolce & Gabbana sent LPD a cease-and-desist letter after the New York company hosted a pop-up shop at Lane Crawford that included its “Gabbana” jerseys. “They thought it would cause brand confusion…” Slimane, creative director of the newly re-branded Saint Laurent (previously Yves Saint Laurent), has recently severed ties with Parisian boutique Colette who has stocked the brand since 1998. Accusing them of selling counterfeit products that "seriously damaged" Saint Laurent as a brand, after taking offence at the stocking of a parody tee bearing the motto 'Ain't Laurent Without Yves'.

But are their any legal ramifications?  

Despite needing a sense of humour these cases raise the more serious question of the merits of fashion parodies, and ownership of intellectual property. Brand recognition is developing that fashion parodies present a gray legal area that needs to be reconciled with intellectual property law and free speech.  The brand “Hermès commenting on Brian Lichtenberg’s Homies has put forward that it “is dedicated to vigorously protecting its brand against unauthorized uses that infringe upon its valuable intellectual property rights, but also respects the freedom of artistic expression.”

But what happens when street wear designers go on to make a whole industry of out of luxury parody clothing? Branding is often to do with reputation and status. On the flip side do some brands see parodies as their opportunity to glean greater brand visibility? Whatever the case, with famous fashion celebrities wearing parody Tee’s, it’s hard for high end fashion brands to say that their consumer, isn’t the type of consumer that would cash in on buying a $60 tee. The Goss-IPgirl finds it interesting, that street wear designers such as Brian Lichtenberg have built an entire multi-million dollar business on parody logos, even to the point that the iconic designer has sued his brother for $100 million dollars for copying his t-shirt graphics, and stealing his parody ideas. Kinda the pot calling the kettle black don’t you think? 

But what makes parody acceptable? what makes fashion parodies okay?

Parody is, in fact, protected by the First Amendment, In a blog post by the IPKAT  Is parody--not imitation-- the sincerest form of flattery for high fashion brands? unlike in the UK, in the US, the “fair use” defence which includes parody, nominative fair use, comparative advertisement are all protected as exceptions to trade mark infringement under certain conditions, while the UK –and various other European jurisdictions- do not recognize it as such. The Lanham Act contains a statutory fair use provision, and the judge‐made category of parody as fair use. The first perspective shows that most courts resolve infringement claims by evaluating parody within some form of the likelihood of confusion test. It also shows that most courts assess dilution claims by analysing parody as a form of non -commercial speech. Essentially the parody must convey two simultaneous and contradictory messages: that it is the original, but also that it is not the  original and is instead a parody.

The parody requirements as laid down by US law (see the latest case, Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 4th Circuit 2007)  “The legal test is whether there is some form of content or communication in the parody. Commerce can be protected under it, but Commercial speech is not entitled to the same level of protection as political speech.”

Trade mark law & the legality of a parody Tee
Typically, the legality of a parody rests on two key legal tests: whether there is actual consumer confusion between the two brands (Would the ordinary consumer likely believe that the “parody” tee was designed, sponsored or endorsed by the original fashion brand at issue?) and whether there is dilution of the original brand’s value, (in other words, the law holds that a famous brand can be diluted, even in the absence of any consumer confusion, if the famous brand is called to mind of the consumer and tarnished.) Both Ralph Lauren and Lacoste have won previous cases against companies that parodied their logos on apparel. But conversely, Louis Vuitton lost a case against a toy maker who made “Chewy Vuiton” branded items, as the product line was so far removed from Vuitton’s core business.

The question is does streetwear parodies like the above actually cause actual confusion among consumers — are shoppers likely to confuse a Giraunchy snapback inspired hat for the real thing? Trade mark legislation and infringement jurisprudence demonstrates that an important part of the “likelihood of confusion” concept is that an “reasonably prudent consumer” would likely be confused about the source of the Girauchy clothing. The question arises as to who is the ‘reasonably prudent consumer’ in luxury brand cases? As for whether fashion-forward individuals would be confused by the parody tee’s, there is an argument, (particularly in jurisprudence emanating from the European courts) that luxury brands are unlikely to be able to persuade the courts that their average 'prudent consumer' should be viewed as more than average, with a higher level of sophistication and attention to detail than the ordinary individual.

Application of law to trademark infringement UK

In the UK, the Lady Gaga v Lady Goo Goo (High Court) precedent would certainly give the outcome that the parody constitutes trademark infringement under Article 10 (3) of the UK Trade Marks Act since it takes unfair advantage of the high fashion brands’ market. However, if we look at trade mark dilution, in particular a “tarnishment” claim, the parody designer definitely makes a profit from riding the back of well-known brands.

But the Goss-IPgirl wonders can mass market parodies even be parodies in the truest sense if they have so fashionably become the norm? What do the rest of our legal and non legal readers think?