Fashion as Art Part II: the legal minefield

Following Vanessa’s blog post on the topic last week, a great conversation unfolded both here and on Twitter contemplating the validity of fashion as art – and vice versa.

Whilst definitions centred largely upon the design and craftsmanship components of garments, plus shared characteristics of the two forms like innovation, self-expression and artisanship, another major part of the debate – the increasingly prevalent use of fashion logos within art works and how big luxury brands react to it – didn’t really get a look in.

Perhaps it should. Whilst the use of commercial branding in art as a mode of social commentary is hardly new – take a bow Andy Warhol and other assorted members of the Pop Art massive – it’s currently a seriously hot topic, particularly for the legions of draconian lawyers employed by the industry A-team to take many of the artists in question down, often with heavy-handed accusations of defamation and trademark infringement.

Some of these aforementioned legal eagles – plus others including a gallery owner and tattoo blogger – spoke on the subject during a fantastic session put on by the Fashion Law Institute at Fordham last month amidst the madness of New York Fashion Week.

The definitive question floated was this – just how dangerous is parody or logo-laden cultural statements to the equity of a luxury brand?

According to Michael Pantalony, a brand consultant and former intellectual property chief counsel for Louis Vuitton, most big conglomerates genuinely see said creations as posing a threat, likening repeated, unauthorized use of logos in contemporary art to ‘death by a thousand cuts’.

“Whilst recognizing the right for free speech, the intellectual property rights of a company have to be protected and management will go to great lengths to prevent trademark exploitation, particularly relating to those trying to make a quick buck via association with their brand,”

Pantalony said of his old employer’s determination to stamp out anything viewed as a violation of their legal rights, no matter how small or bizarre.

Together, the panel suggested that some of the biggest legal headaches for brands today were:

  • The ‘fair use’ defence: the argument by artists that a logo can sometimes reach such cultural relevance or significance that a brand loses full legal rights to it – if it can be proven that the image has taken on a secondary meaning to that of which it was originally intended. Take Andy Warhol’s use of the Coca-Cola brand as a reflection of American consumerist culture (not a luxury brand I concede, but the logic is clearly applicable to contemporary labels today).

 

  • The idea that if the mockery is so blatant it couldn’t possibly generate a negative association in the eye of the beholder (see photo here of Chewy Vuiton dog accessories, a tiny company that defeated an LVMH lawsuit despite glaring similarities in both name and logo, after a US judge ruled that “the fact that the real Vuitton name, marks and dress are strong and recognizable still makes it unlikely that this parody, particularly one involving a pet chew toy and bed, will be confused with the real product.”)

  • How a company should react when an artist is being deliberately provocative by using their logo without permission, perhaps to self-publicize and generate media interest that could strengthen their own ‘brand’. Should they give them what they want? Chanel found themselves in this position in 2009 when Parisian graffiti artist ZEVS sprayed gigantic ‘liquidating’ C’s on the wall of the Giorgio Armani flagship store inHong Kong just prior to the opening of his first solo exhibition there.

The Fordham panel saw commercials and creatives fiercely take opposing sides on the debate on where inspiration could – and should – be found by contemporary artists, whilst simultaneously agreeing that there could never be a ‘one-size-fits-all approach’:

Anna Dalla Val, an IP and enforcement lawyer at Ralph Lauren, ultimately took a measured approach by saying she and her colleagues did try to look at infringements on a case-by case basis as much as possible, saying:

“There’s a big difference between one artist producing a one-off work with creative voice using our iconography and a group producing a line of products with commercial intent, which is counterfeit. We should – and try to – treat them differently.”

Interestingly sometimes however, its the brands who find themselves on the wrong side of the law. Case in point Alexander McQueen, who found themselves sued by those scary, hairy men on bikes from Hell’s Angels after directly lifting their trademark for clothes and jewellery in 2010.

Suing McQueen – and its stockists – for unspecified damages whilst demanding the supervised destruction of all offending articles, a spokesmen for the bikers claimed it wasn’t just about money, but membership too; that the Angels were an exclusive club with a specific lifestyle and they didn’t want just anyone sporting their symbols that signified entry to their A-lister club….

Sound familiar to anyone?

 

The case continues.