Fashion by Felicia: Where Design, Law and Heritage Meet

A blog that brainstorms and expands on topics and conversations begun on the podcast, A Fashion Law Dinner Party with Fashion by Felicia © Felicia Caponigri

[fashionbyf]

Can the aura of a cultural property affect fashion’s IP? What Ferragamo’s Fall/Winter ‘23 fashion campaign with the Uffizi might tell us…

As anyone who reads my Fashion by Felicia musings and other scholarship knows, I’m a bit Ferragamo obsessed. I can’t really pinpoint where my fascination with this Italian heritage brand started. I’m sure it’s lodged deep in my six year old self. It's somewhere in between walking around Florence to Gilli for a hot chocolate and spotting the windows of Palazzo Spini Feroni and observing aristocratic Florentine ladies of a certain age (immortalized in a Milanese version on sciuraglam) wearing their Vara shoes with a slightly adolescent bow that seemed to me to communicate that a six year old Italian-American girl from the Midwest now relocated to a new Renaissance context could really grow up to be that much of an elegant, sophisticated signora. But, no matter where this obsession began, suffice it to say that when I started to explore the links between fashion heritage and art history in my undergraduate studies, the Ferragamo Creations line and the Ferragamo Museum seemed to me the best place to start. Fast forward a decade, and the richness of the Ferragamo example, and its embrace of the multiple facets of its founder’s life and talent as part of its brand heritage, is still offering multi-faceted examples and case studies, from expired patents and exhibitions to gold sandals and Rainbow sandals reimagined from the archive and, now, a Fall/Winter ‘23 campaign at another treasured heritage space in Florence, the Uffizi. 

Now, when you saw the announcement of Ferragamo’s campaign, you might have thought (like Cher in Moonstruck)- wait a minute! Didn’t the Uffizi just object to Gaultier’s use of The Birth of Venus? Wasn’t there some outrage at the idea of Chiara Ferragni posing in the Uffizi galleries just a few years ago? Why is Ferragamo a “yes” now but Gaultier was a “no”? From a purely technical, legal point of view, there is an answer. 

The Uffizi is classified as a special autonomous museum which, while still a public cultural institution under the purview of the Italian Ministry of Culture, makes specific choices as part of its autonomy and mission to protect, manage, and enhance the cultural properties it holds in its collection. You can read more about the reform of Italian museums in 2014, the designation of certain museums as autonomous institutions, and their relationship to the Ministry of Culture’s General Directorate for Museums in Italy here. Part of the protection and enhancement (or valorization) of the cultural properties in the Uffizi collection includes preserving the tangible painting you see when you visit the Uffizi. It also includes deciding how to best use the intangible image of the painting. You also might think of this intangible image of the painting as the tangible composition that, thanks to photography and our iPhones, has become decidedly intangible. In other words, part of the Uffizi’s mandate includes managing the cultural interest that we attach to a painting that is a cultural property, like an oil on canvas by Giovanni Bellini (see a Ferragamo model in front of it here). This management includes protecting the very existence of the tangible painting, and also being sure that painting is properly valorized- that access, enjoyment, and education related to the unique cultural interest the painting has for us is properly supported and communicated. 

Reproductions of cultural properties are part of this valorization conversation. Under Articles 107 and 108 of the Italian Code of Cultural Heritage Law, the Uffizi and the Ministry are allowed to authorize reproductions of the cultural properties in the Uffizi’s collection that are used for commercial purposes. Carved out of this “authorization” are uses related to freedom of expression. No need to worry if you are a considerate, mature American tourist just taking a picture for your personal Instagram (avoid carving love notes on the Colosseum!). Of course, in our personal branding times, what counts as commercial and non-commercial is a spectrum and not a bright line. What if you use your Instagram to promote tours you give or other creative projects, and not just as a travel diary for family and friends? That’s a current hot button issue. Suffice it to say that, for many Italian museums and by extension the Ministry of Culture, commercial use is an important weight on the scale in favor of authorization and, depending on the particular use, the payment of a fee. Many of the latest cases finding that commercial uses of images of cultural properties required authorization and the payment of a fee lean on the concept of public fruition as a justification.  The museum, the argument goes, is entrusted with assuring a “qualified and complete process of knowledge of an object, of a reality that becomes a part and the heritage of the single and collective culture…” (Tribunale - Firenze, 11/04/2022, Rg. 1910-2022). The authorization process is the main vehicle for this assurance. 

You might also think of this assurance as a quality control of the work of art/cultural property’s aura in an age of mechanical (and digital) reproduction, as so expertly introduced into our lexicon by Walter Benjamin. As John Henry Merryman said, we care about a cultural property’s ability to tell us “the truth”, to be authentic and to testify- that is essentially the essence of our public interest in cultural property and, more broadly, cultural heritage. The regulation of images of works of art that qualify as cultural properties under the law is essentially a control over the stories that cultural properties tell. Cultural institutions have an interest, in light of their mission, in supporting some stories over others. Of course, we can debate which stories and for which stakeholders and Merryman’s own conception of “truth”, especially in light of the importance of diversity for museum audiences, and the very relevance of certain museum missions today- here’s looking at you British Museum. The question of what that support looks like, and how far cultural dialogue should be stifled in the name of truth and authenticity, is a foundational one. Of course, one need only look at the Uffizi’s brilliant TikTok channel to see how open that particular cultural institution is to cultural dialogue, translating their cultural properties to new contexts, and embracing Gen Z for the benefit of culture. 

So, short answer? Ferragamo asked for permission to use images of the cultural properties in the campaign and followed Italian cultural heritage law. Ferragamo’s proposed use was deemed in line with preserving and valorizing the cultural properties that would be featured in the campaign by the Uffizi. Gaultier seems to not have even asked for authorization, either as a first matter or after a cease and desist letter from the Uffizi. Hence the characterization of the use of the image of The Birth of Venus in a capsule Gaultier collection as illicit. 

But assuring public fruition and the valorization of cultural property doesn’t always require giving a museum the right to check the use of an image of a painting and/or control its aura. Other museums, and other jurisdictions, take different pathways. This is part of the reason why Italy’s regulation of the reproductions of cultural properties has seemed to be like a mutant copyright to so many. In the United States, for example, we relegate images of paintings that have aged out of copyright law to a robust public domain. And this rule, following some contested museum and art database policies, has over time extended to many cultural institutions. A case in point: The Metropolitan Museum of Art and other museums embrace Open Access policies that allow commercial uses of the images of paintings in their collections. Of course, this doesn’t stop The Metropolitan Museum of Art from partnering with Pacsun- placing images of paintings on loungewear sold in their giftshop, partnering with creative teams to re-interpret the works in their collections in new designs, and leveraging their “THE MET” Logo to create consumer recognition on the fashion and retail market. And it is here that a cross-pollination of sorts begins to emerge between cultural heritage law, IP law (and by that I specifically refer to copyright law and trademark law), and their negative spaces. There is already an argument to be made under Italian cultural property law that some uses of images of cultural properties may be so creative that they are effectively kicked out of a cultural property licensing regime (for more on that argument see here and here). And the same creativity that removes certain uses from a cultural property licensing regime might be enough, in certain circumstances, for the spark of originality required to enter the copyright regime. But, to quote the great Whitney, how will we know? Is there a threshold for creativity and originality in fashion when fashion builds on cultural property and its aura? 

In an insightful recently published article, Intellectual Property and the Manufacture of Aura, Bechtold and Sprigman coin a useful phrase with which to think about this question – “auratic narrative.” Auratic narratives are essentially a product of law, marketing, social norms, communities, and businesses and succeed where there are multiples. We might think of them as “invented heritage” (p. 348) but also as a storytelling that builds on facts and adds a healthy dose of mythmaking, creating brand heritage. Bechtold and Sprigman identify how auratic narratives may highlight a connection to an author (p. 306) (like Salvatore Ferragamo for Salvatore Ferragamo the brand), a place-narrative (p. 324) (like Florence, Italy for Salvatore Ferragamo the brand), and even originality narratives that focus on provenance (p. 330) (like blockchain mechanisms or an NFT with a Ferragamo sneaker that traces one of many shoes back to the brand). At times copyright law and trademark law (p. 323-324) may recognize auratic narratives. This has especially been evident in copyright law when certain jurisdictions have implemented “museum tests” (p. 310) or even deployed the use of “iconic” (as in the Moon Boots case in Italy, see p. 315 and here), connecting designs to specific authors and moments in history. In this sense, then, cultural strategies (p. 312) that involve cultural properties and partnerships with cultural institutions can be a key move for fashion brands and their designs. These strategies and partnerships create auratic narratives that buttress originality, support secondary meaning, or, at the very least, create a marketing campaign that makes a product unique and precious, the authentic original even if defined by copies. 

And this brings us to the Fall/Winter ‘23 Ferragamo campaign. Photographed in front of works of art in the Uffizi collection, Maximilian Davis’ designs for Ferragamo are presented as indicative of a “New Renaissance.” With reference to the collaboration between the Uffizi, The Italian Ministry of Culture, and Ferragamo, you might have noted the credit “By permission of the Ministry of Culture- Gallerie degli Uffizi” as you scrolled through the Instagram captions. In Davis’ words, “The Renaissance is hardwired into Florence, and Florence is hardwired into Ferragamo. At this time of a new beginning at the house, it made perfect sense to reclaim the cradle of the Renaissance as our spiritual home, and to harness the deep, artistic spirit of this city to showcase the new collection.”  Far from just placing models dressed in Ferragamo in front of works in the Uffizi galleries and its behind-the-scenes areas, some models seem to have been digitally placed inside the paintings, especially Francesco Granacci’s tempera on wood and Giovanni Bellini’s oil on canvas. Reclaiming the Renaissance includes painting Ferragamo in as a central character of these Renaissance compositions. In essence, laying claim to the aura of these paintings as part of Ferragamo’s own auratic narrative. Will adding in Renaissance layers to Ferragamo’s designs make us recognize Ferragamo’s designs as more Florentine than other luxury brands? Will this Florentine connection increase Ferragamo’s Made in Italy value on the market and, perhaps, make these 2023 designs more impactful in the history of design, so as to render them iconic or, in the future, indicative of a historically important “fus[ion] of beauty and innovation”? Time will tell but, as long as there is an aura for cultural property, and museums that participate in fashion’s origin stories, there may be an auratic narrative to buttress fashion’s IP rights. 

Additional References

Rights & Reproductions | Uffizi Galleries

Information concerning the reproduction of artworks belonging to the Uffizi Galleries for research and/or business purposes.

http://musei.beniculturali.it/wp-content/uploads/2018/04/Allegato_I-Livelli-uniformi-di-qualit%C3%A0-per-i-musei_English.pdf

http://musei.beniculturali.it/notizie/notifiche/sistema-museale-nazionale-pubblicato-il-decreto

Le Gallerie degli Uffizi initiatives between cultural heritage and copyright law, Presentation by Avv. Serena De Laurentiis, ALES S.p.A. and Gallerie degli Uffizi, June 2023

Lorenzo Casini, The Public/Private Dialectic in the Valorization of Cultural Heritage (forthcoming in The Italian Law of Cultural Heritage: A Dialogue with the United States, conference proceedings, Florence, Italy, June 2022)

Lorenzo Casini (2018) The long and winding road to the establishment of state-museums in Italy, Museum Management and Curatorship, 33:6, 546-554, DOI: 10.1080/09647775.2018.1537616

John Henry Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV. 339 (1989)

Felicia Caponigri, Images of “Italian” Cultural Properties: Some Thoughts on the Italian Code of Cultural Heritage Law’s Articles 107 and 108 for an American Audience (forthcoming, The Italian Law of Cultural Heritage: A Dialogue with the United States, conference proceedings, Florence, Italy, June 2022) 

Heymann, Laura A., Dialogues of Authenticity (July 29, 2013). 67 Stud. L. Pol. & Soc'y 25 (2015), William & Mary Law School Research Paper No. 09-247, Available at SSRN: https://ssrn.com/abstract=2302696

Images 

Ferragamo's new Renaissance campaign celebrates art and innovation

Ferragamo announces its new autumn/winter 2023 campaign that features models reimagined as timeless protagonists of renaissance paintings.

https://www.ferragamo.com/shop/us/en

Gender-free styles inspired by works of art & the iconic NY-based museum. Shop The MET x PacSun collection at PacSun and enjoy free shipping

[fashionbyf]

Is there a difference between an icon and a trademark? What the Summer 2023 Barbie fashion party might tell us…

Well, summer is almost over, and, unless you’ve been on Mars (scratch that- you probably could have seen the sea of pink from space!), you’ve had or you've at least been living in the greater context of a Barbie-filled summer. You might have mixed feelings about this. As Vanessa Friedman put it, you might be “all pinked out” and never want to see another piece of Barbie-merch in your life. On the other hand, you might be like the countless other people celebrating the Barbie movie’s empowering message(s), its musical number for Ken, or just reveling in the fact that a film helmed by a woman director made over 1 billion at the box office. Whichever camp you fall into, there is one aspect of our Barbie-filled summer which has made all this celebrating, critique, and dress-up possible: intellectual property and, we might even say, its limits. 

A central part of Margot Robbie’s promotion of the Barbie film has centered on how lucrative and full of potential the Barbie-world IP was/is; on how Robbie knew this while negotiating with Mattel and during the production of the film. As VOGUE reported in its Summer 2023 issue, Robbie observed, “The word [Barbie] itself is more globally recognized than practically everything else other than Coca-Cola.” (p. 82). And this emphasis on leveraging global recognition through Barbie’s IP fit Mattel’s own conception of itself as a company. As Ynon Kreiz, Mattel’s CEO, told The New York Times Magazine, “We used to think of ourselves and present ourselves as a manufacturing company…The specialty was: We make items. Now we are an I.P. company that is managing franchises.” (p. 26) But there is something important buttressing Kreiz’s characterization of Mattel as a company focused not on tangible products or items for sale but on the IP that makes those products/items possible: the cultural meaning of Barbie. Central in management’s mind is “[t]hat Barbie is not a toy; she is a pop-culture icon. That she does not have customers; she has fans. If you take that seriously, it outlines how to proceed. An icon who wants to stay at the center of the culture can’t keep putting out the same old thing and suing anyone who riffs on it. She has to stay current.”

And this points to a tension- and a question- that has implicitly animated and informed each one of our reactions, interpretations, and emulation of Barbie this summer. What is the difference between an icon and perhaps the strongest part of Mattel’s Barbie IP arsenal, a trademark? Does managing a cultural icon automatically mean a strong trademark on the market, or does having a cultural icon in your arsenal require ceding some proverbial trademark ground to your consumers or even to the public at large?  

An icon is defined in a myriad of ways: it can be “a person or thing widely admired especially for having great influence or significance in a particular sphere”; an “emblem or symbol”, a sign, pictorial representation or image; or “a representation of sacred events or especially of a sacred individual (such as Jesus Christ, the Virgin Mary, or a saint) used as an object of veneration or a tool for instruction.” (For this last definition, I wouldn’t go so far as to compare Barbie to a saint, but the characterization of Barbie as a sacred individual is apt- haven’t we been venerating her since our childhoods? There may also be more to say about the woman/Virgin Mary/Barbie female triangle, but I digress…) The definition of “iconic” the adjective places even more emphasis on influence and significance and symbolism. Iconic is defined as “very famous or popular, especially being considered to represent particular opinions or a particular time”; “showing a relationship between the form of a sign, such as a word or a symbol, and its meaning”; and “of, relating to, or having the characteristics of an icon.”  Complicating our common understanding of icon and iconic, however, is its ubiquitous use in, to name just a few, 

the titles of creative works (looking forward to binge-watching what VOGUE deems “four iconic supers” in the Apple TV miniseries “The Supermodels” as I currently lose myself in PBS’ “Iconic America”) 

marketing campaigns (I’m looking at you Fendi and the “iconic shape” of the Baguette not to mention less luxury fair like JCrew’s “iconic Edie bag”)

and on TikTok (Sophia Richie Grainge dancing to “Lifestyles of the Rich & Famous” sung by her brother-in-law was “iconic”), which we might even count as everyday conversation….

In some ways the definition of a trademark chooses a slice of the definition of an icon/iconic, protecting or extending a legal right to police the relationship between a sign and its meaning, which may include influence and fame. We might say that a trademark right effectively extends a legal right to the owner of a trademark to police the relationship between a word, name, symbol, or design and a specific message that it conveys to consumers- who produces the goods to which the mark is applied. And ideally this should not extend to who produces the ideas within the goods. As the holding in the Dastar case outlined “origin” in the phrase “origin of the goods” should not extend to “the person or entity that originated the ideas or communications that ‘goods’ embody or contain” but rather to “the producer of the tangible product sold in the marketplace” including “the actual producer, but also the trademark owner who commissioned or assumed responsibility for (“stood behind”) production of the physical product.” (p. 31- 32) Of course, trademark law also encompasses a number of other meanings and messages beyond who the producer of goods is, including who has sponsored or who is affiliated with the product. And with a claim like trademark dilution that goes beyond the concept of consumer confusion, trademark law (or, we might say trademark owner(s)) are arguably trying to claim a larger piece of the pie of meanings, messages, and symbolisms that exist between culture and commerce in their marks. And this should come as no surprise given the increasing role that managers of brands see themselves playing in culture. And as fashion, culture, and heritage continue to cross-pollinate (see the latest teasers and campaign for Fall/Winter 2023 Ferragamo fashion which showcase images of cultural properties and artwork in the Uffizi), we might more seriously consider reading fashion brands’ cease-and-desist letters and actions to police their trademarks in a wider cultural lens. 

Do brands have a responsibility to police their marks while allowing for remixing, uses beyond those that are fair under the law, and even, perhaps, creations that may be trademark uses but communicate messages with which the brand would disagree (I'm looking at you Hermès)? And, to challenge Justice Scalia’s assumption, do consumers “who bu[y] a branded product… [at times]...assume that the brand-name company is the same entity that came up with the idea for the product, or designed the product”, especially if there is a marketing campaign that equates the producer or designer with the creation and dissemination of ideas embedded in the product? (p. 32) And might we, as consumers, care about who came up with the idea for a product as part of the meanings we identify with a trademark? The fact that we in fact do care might be the very reason we are so obsessed with authenticity on the fashion market in the first place.   

The question of whether icon=trademark, or how these two terms overlap in a Venn diagram like space, is rife for more research and analysis (and is the topic of an academic paper I am currently finishing- full disclosure!). And there are some indications that “iconic” is doing potentially heavy lifting to convince judges and examiners that a brand has a strong mark, that a design has obtained secondary meaning, or is famous. In the VIP v. Jack Daniels opinion, iconic was used to describe the Jack Daniels mark at issue (“VIP sells products mimicking Jack Daniel's iconic marks and trade dress that mislead consumers….”) and Jack Daniels was described as only one of many “iconic brands” founded in the 19th century, among them Campbell’s Soup (pre-Warhol!), Quaker Oats, and Coca-Cola. (p. 3, 9-10). An early empirical observation that iconic is being imported into the application of trademark’s likelihood of confusion test and even into dilution actions raises questions about what legal weight we should give “iconic”, as a normative question (if we give it any weight at all). But there are some takeaways we might already observe about similarities and differences between icons and trademarks from our collective Summer 2023 Barbie fashion party. And central to those takeaways is the fact that we do seem to care about the ideas contained within the Barbie marks, whether registered or not. (For a deeper dive into Barbie's registered trademarks, and Barbie Pink as not yet registered in the United States see Rachael Dickson's great and informative videos and tweets).

First, “iconic” has been part of the Barbie marketing campaign, especially during Margot Robbie’s red carpet re-interpretations of Barbie’s celebrated looks and fashion magazine’s editorials commenting on these re-interpretations (we might even call them copies). As Glamour put it “There’s no way we will ever forget how iconic all of Margot Robbie’s Barbie looks have been…” Side by side comparisons between Robbie’s iconic looks and the “iconic Barbie dolls that inspired them” beg the question of what meaning iconic has here. Are Robbie’s outfits iconic because they point back to the iconic Barbie outfit, thereby making consumers think of Mattel even though Mattel did not make the outfit Robbie is wearing? While some of Robbie’s outfits approximate Barbie’s outfits very closely (see Day to Night Barbie, 1985 compared to Robbie in a Versace Day to Night replica) others repeat a pink and gingham pattern in more freely inspired looks designed by Prada and Chanel, among others (I’m thinking of you two, Quick Curl Barbie, 1973 and Barbie Movie Barbie, 2023). What exactly is the symbol here within the fashion that is “iconic” of Barbie? If it is the entire outfit or design, iconic-icity might run up against the doctrine of functionality in trademark law if we were to contemplate whether the outfit/design could function as a trademark. If it is a combination of colors or the pink and gingham pattern, how do we conceive of secondary meaning in this case, especially when fashion brands known for using those colors or the color pattern in question have helped to create the outfit beyond the category of toys and in clothing? And Robbie’s outfits naturally bring Barbie’s outfits into 2023, with all the contemporary style and timeliness that implies (crimped hair aside, in this Pucci look, the headband was a no go). If a contemporary fashion outfit worn by Robbie is iconic of Barbie and indicates Mattel as its origin, what is the icon and what type of origin are we talking about? Is the icon/sign the idea of Barbie and the origin the cultural meanings we have caught up in the particular Barbies Robbie is citing? Or, is the icon/sign to which Robbie’s outfit is referring the particular Barbie doll product in its tangible form and the origin Mattel as a producer?  With what would consumers say they most associate these contemporary fashion outfits? Is the answer Barbie the doll, Barbie the idea, or even, perhaps, Barbie the movie? 

Complicating the question of what is the icon in Robbie’s replications of Barbie’s outfits are the added IP layers that the fashion brand collaborators bring to the table. Mattel’s multiple collaborations with fashion brands have blurred the lines between brand icons and Barbie icons. A whole fashion editorial team at VOGUE seems dedicated to spotting how fashion and luxury brands have referenced their own archives while catering to the Barbie universe (consider Valentino’s 1993 polka dots). Collaborations with still other, more commercial fashion brands and companies- a Barbie rug!-  might seem to make Mattel’s trademarks more or just as recognizable as those of the fashion brand or other company with which it is partnering. Consider the Gap x Barbie collab described by Gap as “a new collaboration of modern icons.” Here, the word Barbie and Gap are prominent, and the color pink (whether in the Barbie Pink Pantone color or not) may only help to make these products particularly Barbie association prone. At the same time, however, collabs with brands that have historically used similar colors to Barbie Pink or that are now known on the market for their presence on a pink or Barbiecore aesthetic spectrum risk subsuming consumers’ identification of Mattel as the source of these products. Instyle may have said that “Greta Gerwig’s hot pink Valentino look at the Barbie premiere was MADE for this moment” but which comes first in consumers’ minds when they see Gerwig in this outfit at the Barbie premiere- Valentino the brand, Mattel the producer of Barbie, the idea of and the creative product generated by Barbie, or even more general emotional feelings linked to pink?  

Of course, informing the question of what exactly is the relationship between icon and trademark in the context of the cultural and commercial Barbie universe is the fact that the more we dress up as Barbie, think pink, and embrace Barbiecore, the more cultural power we give to Barbie and to its producer Mattel. The more we have the freedom to dress in Barbie Pink to attend the Barbie movie (whether or not we buy and wear a dress or accessory created through a licensing deal with Mattel) the more iconic – very famous or popular –  Barbie may become in our minds. We might think Barbie when we see any shade of pink, any pink polka dots, any pink and white gingham. But thinking Barbie does not necessarily mean thinking Mattel, and this is where Kreiz’s plan to manage Barbie as a pop-culture icon and not a toy comes full circle for the company's, but not necessarily the public’s, benefit. Expanding its presence from products on the market to ideas contained in films and music progressively expands Mattel’s IP portfolio and its presence in the minds of consumers whether the product they are selling benefits from IP rights or not. Even if the validity of a trademark right in a Barbie doll fashion design or Barbie Pink is questionable, it might not matter so much if everyone if wearing Barbie colors, watching Barbie the movie, and talking about the cultural meanings and gender roles contained in the idea of Barbie herself and the movie about her. In other words, icons might mean strong trademark rights on the market in certain circumstances, but having an icon and managing it “at the center of the culture” might lessen concerns about managing third party uses of marks in commerce at a more general level. And in this sense, culture might trump commerce or, at the very least, commercial might become cultural, and vice versa.  

Further Reading

Kate Spade LLC v. Wolv, Inc., Opposition No. 91241442, TTAB, April 25, 2022 

In re Max Mara Fashion Group S.r.l., Application Serial No. 87786944, TTAB, February 12, 2020 

Nike, Inc. v. Honest E Online LLC, Opposition No. 91254139, TTAB, April 20, 2021 

Cartier International A.G. v. Lance Coachman, Opposition No. 91209815, TTAB

Chanel, Inc. v. Camacho & Camacho, LLP, Opposition No. 91229126, TTAB, January 12, 2018 

Marc Fisher LLC v. Bottega Veneta, Opposition No. 9121425314 

In re Bottega Veneta International S.a.r.l., Serial No. 77219184, TTAB, September 30, 2013

TESS, Registration Number 4527371, Registration Date May 13, 2014

The Coca-Cola Company v. Robert Troy Hoff, Opposition No. 91244286, TTAB, May 14, 2021

All Pinked Out

Hey Barbie, there is a fine line between reclaiming a color and ruining it.

“Hello Barbie” in VOGUE Summer 2023

Willa Paskin, “Plastic Fantastic” in The New York Times Magazine, July 16, 2023 

Dastar Corp. v. Twentieth Century Fox Film Corp. et al., 539 U. S. 23, 31 (2003)

https://www.latimes.com/opinion/story/2023-08-04/beyond-being-feminist-barbie-preaches-more-kenpathy

Everyone is absolutely loving Barbie star Ryan Gosling's big musical number I'm Just Ken

Can you feel the Kenergy?

Margot Robbie in a Custom Vivienne Westwood Corset Dress Is Your Cure for ‘Barbie’ Burnout

Trust me.

Margot Robbie Borrows From the “Real-Life Barbie” in Pink Valentino Polka Dots

The ‘Barbie’ star’s Valentino dress was inspired by one worn by supermodel Karen Mulder – who was dubbed the“real-life Barbie” in her heyday

https://ruggable.com/collections/barbie-rugs-and-doormats?gclid=CjwKCAjw5_GmBhBIEiwA5QSMxCjYs2t9St9CvS8bYIWzBF8SPGbcONfjR_4rrZ-Aodu1FvyyG8gqmhoCJoMQAvD_BwE

Jeanne Fromer, "Against Secondary Meaning",  98 Notre Dame L. Rev. 211 (2022), https://scholarship.law.nd.edu/ndlr/vol98/iss1/4/#:~:text=The%20dangers%20of%20enshrining%20secondary,meaning%20creates%20which%20hurt%20smaller

Graeme Dinwoodie, "Trademark Law as a Normative Project" (forthcoming in the Singapore Journal of Legal Studies)

View this post on Instagram

A post shared by ®️achael Dickson (@tudorsandtms)

This chapter criticizes the protection of non-traditional trademarks (NTTMs) by focusing on three specific examples from the fashion industr

Images

From references above and screen shots from Facebook, Instagram, and TikTok

[fashionbyf]

What’s Fake and what’s Real when everything can be Licensed?

The Pros and Cons of Storytelling when Design Dupes and Authenticity Exist in a Heritage Universe

Every time I am in Florence, I stop by the Gucci Garden. I still remember when it was the Gucci Museo and I revel in traveling through the halls and remembering what is used to be, as a museum, and seeing the differences now that it is a meditation on Gucci advertisements (or at least it was the last time I was there… time for another visit post- Alessandro Michele’s tenure!). One of my favorite rooms in the Gucci Garden is the Gucci Collectors Room, where shoes, clocks and butterflies, among other things, are piled in a room of mirrors, multiplied, and reproduced as far as the eye can see. On the right side of the room, one of seemingly a million on the shelves of Gucci shoes, are a pair of Gucci sneakers designed by Alessandro Michele with the word “FAKE” on one of them. Part of the Fake Not collection, in the context of the Gucci Garden and the Gucci Collectors’ room, the shoes are a canvas on which to paint theories and answers to questions about how we decide what is a fake, how we conceive of authenticity as a concept, and what role illicit takings, of intellectual property or of other creative practices or products, have on our understandings of what is real/fake, authentic/inauthentic, appropriated/shared or given.

A central shade of paint (if we continue with this artistic metaphor…) to use in these theories and answers is heritage, which includes the stories we share about the origins of a product like a “FAKE” Gucci shoe and the associations we have between these stories and other origin stories, other products, and other creative processes. In other words, thinking of the “FAKE” Gucci shoe as fake or real, authentic or inauthentic, depends very much on how much we know about the product and who has authorized its production, and what that has to do with the history and ideas behind the Gucci brand. What is fake and what is authentic has much to do with the stories we tell ourselves, the facts we use to inform those stories, and the role we assign to brands, communities, and individuals in those stories. And as brands increase their culture share  (in part by increasing their market share beyond their main product lines), the stories brands tell us about their various products and initiatives seems to be expanding our understanding of what is not a fake and, therefore, the breadth of what can be considered real or authentic. Counterintuitively, expanding the universe of possible collaborations through a norm of authenticity seems to be narrowing the world of fakes while, at the same time, undermining why we care about a fake in the first place.

The role of heritage storytelling to disrupt as much as reinforce traditional divides between what is fake or real in fashion has recently been on display in the Thierry Mugler H&M collection.  Casey Cadwaller, Mugler’s Creative Director, was quoted as saying, “We did some things with H&M that we can’t do at Mugler, to pavé the crystals on the Lycra really, really close together to make it really decadent and really beautiful—and for such great value.” At the same time, the collaboration builds on Mugler’s design DNA, with “signature Mugler looks, including several archive remakes.” Pieces in the Mugler x H&M collaboration are decidedly different from and yet the same as their haute couture counterparts created by the Mugler brand. What unites these two different products is their common origins, both from a storytelling point of view and an origin/producer point of view (and here I’m making a Dastar distinction- origin in a trademark sense versus origin in a copyright sense). Mugler may have licensed its MUGLER trademark to H&M and, if it has a copyright in any designs that are separable and original, may have also licensed those designs, although Caldwell’s close involvement and the dynamic identification of which designs to include suggests a more collaborative design services-like agreement as part of the collaboration, in addition to any rights created by the MUGLER x H&M logo. But what is fundamental to the success of the collaboration is not simply a recognition by consumers that MUGLER produced the MUGLER x H&M products alongside H&M, that MUGLER is the source of these products. Rather, what also matters is the story Caldwell and Mugler, together, tell- of an inclusive brand embarking on a design project that is a continuation of their house codes and DNA, rather than a “sell-out” or the production of a lesser, “less-real” line. This storytelling has been crucial to the success of collaborations between H&M and high fashion brands ever since Karl Lagerfeld broke ranks and created the first maastige line for H&M (see the legendary commercial here). Lagerfeld’s pronouncement that “It’s all about taste, if you are cheap, nothing helps” might have been the bell that tolled the advent of storytelling, curation and heritage as the differentiator between real fashion and fake fashion. What matters is not who is making the actual product but whether that product is embraced as part of a brand’s wider story, history, and values.

And this may be one reason why design dupes (or “superfakes” as they were recently termed) are both so popular and so dangerous. Superfakes are created in ways that are not authorized by a brand’s storytelling and are, at the same time, endorsed by members of communities who are the prime targets of that storytelling- the aspirational customer who, instead of waiting in line at H&M, buys a fake bag. If we don’t care about the story that surrounds the product, if we don’t care about all the intricacies that make that product belong, in our minds, to one brand over another, to an authentic world and not to an inauthentic or fake one, then what do we care about?

We might, in fact, only care about use, in all the pesky ways that that word communicates function over form, utility over meaning, and the tangible over the intangible. And if we only care about use then we might elide or overlook many of the foundational aspects of creation and storytelling that make that use possible in the first place. In other words, brands’ emphasis on storytelling to authenticate products made in collaboration with fast fashion brands like H&M might lead consumers to doubt the legitimacy of the story and feel that one Mugler cutout top is as good as the same cutout top made by another fast fashion producer without Mugler’s approval. Both products, in their sameness, can be used in the same way: like a bag and its superfake, both products can clothe the wearer and communicate an association with Mugler’s design aesthetic and values. But by emphasizing this particular use and its sameness, consumers also build a definition of use on the very parts of the storytelling they seek to abandon. Consumers’ particular use is built on the intangible symbolism and messages of the bag that are made and fundamentally shaped by storytelling, and the heritage universe, even an expansive one, in the first place.

And it is here that I take the liberty of digressing to the recent Warhol case and the different uses (and their purpose and character) at issue in the majority’s opinion (the licensing use, the use of “depicting Prince in a magazine commemorating his life and career”) and the dissent’s opinion (the appropriation use by Warhol, the first use that makes the choice of a Warhol over Goldsmith’s portrait one of conveying fundamentally different meanings about Prince and not just a choice to simply depict Prince). In disagreeing over whether the licensing of the Goldsmith photo and the Warhol photo shared the same objectives (and by extension, whether the Court would succeed in the “magazine business” or whether it should even take art historical references into account), the majority and the dissent are, in a world parallel to the fashion world - art- disagreeing over the role of the predicate use. In other words over the weight we should give to the story that precedes and informs the creation of works that can serve the same overarching uses. Much as we can see the magazine editors’ choice between the Goldsmith and the Warhol as one about serving a general purpose to commemorate Prince, so we can see consumers’ choice between a real and a fake bag as fundamentally about a general purpose of carrying items around or clothing themselves. But these choices, like the choice of a Goldsmith or a Warhol, are still predicated on the meanings and aesthetics of the work or the bag, as a first matter. The challenge is, when it seems as though any work and any logo can be licensed to serve any purpose the brand chooses, for any meaning the brand says, for any heritage story the brand tells, how can we differentiate the real from the fake, the authentic from the inauthentic, and the appropriated from the freely given?

It may be for this reason that the majority in Warhol turns away from art history books and art criticism to objectivity and to the facts culled from the magazine editors’ own choices. But art historians and critics are meant to find the facts and provide the objectivity on meaning that combats the slippery slope of meaning-making imagined by licensing. As Robin Givhan recently said in other words, being part of the fashion ecosystem can often compromise that objectivity and fact-finding. At its heart, the storytelling in heritage is supposed to be about objectivity and facts, and, as licensing increasingly becomes a part of the fashion heritage story, it might be particularly important to consider what role that objectivity and fact-finding can have for the benefit of real/fake and authentic/inauthentic fashion.

References and Further Reading

https://hypebeast.com/2020/10/gucci-fake-not-collection-lookbook

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302696

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3206830

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4222455

https://www.businessoffashion.com/articles/luxury/culture-is-the-new-luxury-golden-goose-ceo-unveils-strategy-for-brands-next-chapter/

https://www.businessoffashion.com/news/retail/hm-teams-with-mugler-for-latest-high-low-collaboration/

https://www.vogue.com/article/at-the-hm-mugler-show-a-powerful-display-of-fashion-music-and-community

https://www2.hm.com/en_us/life/culture/inside-h-m/mugler-hm-announcement.html

https://www.nytimes.com/2023/05/04/magazine/celine-chanel-gucci-superfake-handbags.html

https://supreme.justia.com/cases/federal/us/539/23/#tab-opinion-1961287

Managing Fashion and Luxury Companies by Stefania Saviolo & Erica Corbellini

https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

https://www.interviewmagazine.com/fashion/robin-givhan-on-the-state-of-fashion-criticism-in-2023#:~:text=GIVHAN%3A%20I%20think%20that%20journalists,to%20the%20tenets%20of%20journalism.

https://exhibitions.fitnyc.edu/faking-it/

Images:

https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

https://www.nytimes.com/2023/05/04/magazine/celine-chanel-gucci-superfake-handbags.html

Gucci Garden © Felicia Caponigri

[fashionbyf]

What fashion makes the heritage cut? What Shoemaker of Dreams and even the Walter Albini relaunch indicates…

The Salvatore Ferragamo documentary Shoemaker of Dreams directed by Luca Guadagnino is finally available on AppleTV and, if you missed it in theaters or at other screenings in Italy since its first premieres in 2021, this is the time to watch it. Mix yourself an Aperol Spritz, imagine you’re at Procacci or Obika on Via Tornabuoni (unfortunately the former Anglo-American haunt featured in Tea with Mussolini, Doney’s, closed years ago…) and immerse yourself in the story of this Southern Italian immigrant to the United States who revolutionized shoes and shoe-making for Florentines and the wider world. Full of personal insights, the documentary also features Salvatore Ferragamo’s own voice taken from 1955 recordings of his Memoirs and interviews with Australian TV outlets in 1958. This is an especially moving part of the documentary because Salvatore Ferragamo’s voice, in some ways, perfectly encapsulates the context of the cultural moments in which he participated beyond fashion. Heritage, we might say, before heritage. These moments include Italians coming to the United States in the early 20th century with the requisite $20 entrance fee to create new lives and new identities for themselves, the beginnings of the movie industry in Santa Barbara in all its creativity and its decampment to Hollywood, and the determination of entrepreneurs to succeed against all odds and Florentine expectations, even in a complex early 20th century Italy facing economic sanctions.

But, even more than that, the documentary is a testament to one man’s vision of shoes, from how they should be made, to the creativity they can embody and the messages they can impart. And this vision, on display more than 100 years later, is perhaps the most striking thing about the documentary because the vision highlights how we can project the present into the future and extend a role to the past in our visions of the present. Speaking after the bankruptcy of his business in 1933, Ferragamo is quoted in the documentary

For the first time in my life, I started to look back over the shoulder of my past. As a flash, it all seemed to see many things which I had, until then, never seen before. I looked forward to my future.

Looking to our past, even as we craft our personal narratives, and spotting what matters and what doesn’t, and how to use that for the benefit of our present and our future, is a central question at the heart of heritage.

In fashion, a field defined by its timeliness (as Saviolo and Corbellini in particular describe it), spotting what will matter over time is an endeavor. But, as time passes, time acts almost as a sieve, filtering out what matters and what doesn’t, what is timeless and what is timely for present generations. The results of the application of time can be unexpected (would you have thought that thinly rectangular sunglasses, low rise pants and other silhouettes from the late nineties and early noughties would be back in fashion?). The results can also be unexpected but somewhat pre-identifiable, driven by marketing, important brand anniversaries, and brand mythmaking as much as by nostalgia and/or individual and collective tastes (Exhibit A: the resurgence of the Fendi Baguette bag). Designers often play an important role in the curation of the past, as Maximilian Davis is doing at Ferragamo now- citing to Ferragamo’s gold sandal and building on the F heel, among other design details.

The pull between the past and the present, what we might term a battle for the future of fashion- heritage- also depends on the law. And this is also on display in Shoemaker of Dreams. One of the primary pieces of evidence shown during the documentary as a testament to Ferragamo’s vision are the multitude of patents he had on the procedures for his shoe designs, the processes to make them, and their look (the Ferragamo Museum also staged an insightful exhibit on these patents in 2004).  What we can take from the past and what we can re-use often depends on whether someone has a right to control a production, the use of a design, its reproduction and even the associations we make and have with that design. Some of the most insightful of Ferragamo’s creations (many reproduced ingeniously as part of the Ferragamo’s Creations line) are the fruit of others’ control of raw materials (or lack thereof), his own patents which reserved control over specific parts to Ferragamo himself for a time, the matching of tradition and innovation, and the inspiration that came from themes, recalling, and remembering.  While the documentary uses the Invisible Sandal (one of the most evocative examples I’ve explored extensively in other work) and the caged heel, the facts surrounding Ferragamo’s wedge made with cork are particularly evocative of the numerous threads that make up the design of one of his shoes. In his Memoirs, Ferragamo details how, after designing them years before, he discovered that a version of wedge soles had been worn centuries before thanks to an archeological excavation at Villa di Boccaccio outside Florence in 1950. As Ferragamo shares in another part of the documentary

I have not followed any master. I have not followed any school. Where have I learned all that I know? I had a clear vision that my work had never been done before. I have done it. Where? I do not know. But everything that I have done since my boyhood time, it has been work which came back to me. All I have to do while I work is to sit down and recall what I know about this work and do it again.

Knowing what fashion heritage is years later, what heritage makes the cut, is often a product of vision and, as Ferragamo’s work shows, of the tools and instruments that support that vision, from patents to trademarks, and even a robust public domain and other doctrines that allow for re-mixing, re-use, and commentary. As time goes on, curation and preservation, saving the vision and the tools and instruments that support that vision, are also central to identifying what is fashion heritage and how it can impact our fashion today. This is why archives themselves are also important for making the heritage cut.

And the acquiring of rights and archives to support a contemporary vision is what we see happening today with the revival of heritage brands, like that of the incredibly prescient Walter Albini, who, as a designer, preceded Giorgio Armani in his impact on Italian ready-to-wear and the concept of Milanese fashion. The announcement of the revival of the Walter Albini brand noted that the investment company that is relaunching it acquired the designer’s “intellectual property and archives”, including the acquisition of a large tangible archive of “garments, costume jewellery, drawings, photographs, and other memorabilia” from Dr. Barbara Curti, who is listed as Chief Memory Officer of the Walter Albini Archive. While we will have to see what the vision for a 21st century Walter Albini line is, the acquisition of the previous brand’s intellectual property and archives are fundamental first steps to identifying what fashion heritage has made the cut for our present times.

References and Further Readings

https://www.lofficielusa.com/fashion/gen-z-y2k-millennial-90s-fashion-nostalgia

https://tv.apple.com/ca/movie/salvatore-ferragamo-the-shoemaker-of-dreams/umc.cmc.13bohnm0ogsk0g6wdwlftjqud

https://www.wsj.com/articles/its-happening-again-the-return-of-low-rise-jeans-d8efc3f0

The Shoemaker of Dreams by Salvatore Ferragamo (in the Italian version, pages 131-35 for the story of the cork wedge)

https://academic.oup.com/jiplp/article/17/11/891/6852707

https://www.vogue.com/fashion-shows/spring-2023-ready-to-wear/salvatore-ferragamo

https://www.vogue.com/fashion-shows/fall-2023-ready-to-wear/salvatore-ferragamo

https://artsandculture.google.com/story/UQWRSqxpWZsfIg?hl=it

https://cardozoaelj.com/fashions-brand-heritage-cultural-heritage-and-the-piracy-paradox/

https://repository.law.umich.edu/articles/222/

https://www.businessoffashion.com/articles/luxury/walter-albini-relaunch-confirmed/

https://www.newyorker.com/magazine/2007/09/24/the-piracy-paradox

https://www.nyulawreview.org/issues/volume-97-number-2/memes-on-memes-and-the-new-creativity/

https://www.cambridge.org/core/books/history-of-intellectual-property-in-50-objects/0737F2B342A61E0E90B0A98288E412C3

https://www.skira.net/books/le-leggi-della-moda/

https://www.bloomsbury.com/us/paris-capital-of-fashion-9781350102965/

https://www.unesco.org/en/legal-affairs/convention-safeguarding-intangible-cultural-heritage

https://www.instagram.com/walteralbini_officialarchive/

https://scholarworks.uark.edu/cgi/viewcontent.cgi?article=1027&context=alr

https://scholarship.law.tamu.edu/facscholar/480/

Images from 

https://www.vogue.com/fashion-shows/fall-2023-ready-to-wear/salvatore-ferragamo/slideshow/details#77

https://www.vogue.com/fashion-shows/spring-2023-ready-to-wear/salvatore-ferragamo/slideshow/details#57

https://mostra1972.unipr.it/s/1972_mostra_en/page/designer_albini

https://www.ferragamo.com/creations/en/eur

[fashionbyf]

What’s the difference between heritage, archival looks, and vintage fashion? What the Met Gala’s “In Honor of Karl” dress code can tell us…

Last night, the fashion world gathered to fundraise for the Costume Institute and celebrate the exhibition Karl Lagerfeld: A Line of Beauty. The dress code “In Honor of Karl” was reported in VOGUE as offering attendees three options:  

The first, most authentic approach would be to wear an archival look from one of the labels Lagerfeld led; the second would be to sport modern-day Chanel or Fendi, two houses on which Lagerfeld left an indelible impression; and the third—and perhaps most obvious? To find a Choupette all your own and dress à la Lagerfeld.

Guests certainly did not disappoint, with the variety of looks embracing all three options (Jared Leto as Choupette!). But from a design, heritage and law standpoint, VOGUE’s outline of options, especially in the context of a fashion exhibition, points to deeper questions about how fashion heritage is made. As a part of our culture that embodies identity (there’s a whole fashion journal devoted to that!) and communication, and a close connection to our bodies, fashion reflects, perhaps better than any other part of our culture, the complexity of finding consensus about what is of historical importance. And, because it is an industry with a strong image and mythmaking tradition, fashion also reflects the role that commerce, businesses, and marketing can play in the development of that consensus. Despite well-placed concerns about fashion swallowing up art or cultural heritage professionals’ well-placed sounding of the alarm when ethical guidelines are crossed to create viral red carpet moments, commerce’s and business’ role (and, by extension law’s role) in shaping fashion history seems here to stay. But that’s not necessarily a “bad” thing from a historical and cultural appraisal point of view, so long as we’re transparent about how that fashion heritage sausage might be made (and, by extension, about the impactful and important role that fashion brands play today as cultural institutions themselves). So, let’s examine evidence from the Met Gala’s white (and red and blue!) carpet.

First, as an ethical rule and, in certain jurisdictions, as a legal rule, museum pieces are not to be worn. (Here’s a Dressed podcast with the great Sarah Scaturro for more on how preservation grounds the ethical rule. Preservation also grounds the legal rule when fashion is classified as part of cultural property in certain countries- like Italy. More on that possibility here.) Despite the Costume Institute having numerous Karl Lagerfeld designed pieces in its collection, we didn’t see any of those dresses worn at the Gala. But we did see many of the pieces on display in the exhibition, Karl Lagerfeld: A Line of Beauty, photographed for VOGUE. And a close look at the descriptions in this editorial indicates that the majority of the looks in the exhibition are not necessarily in the Met collection. The looks are, rather, in the archives of the many brands for which Lagerfeld worked. Beyond cultural property law (for the most part- some fashion brand archives have been declared cultural property) brand archives are usually managed not as museum collections but as dynamic testaments to past creative and commercial activities (as the definition of an archive implies). This dynamic nature also, at times, leads to alterations of the dresses themselves (Penelope Cruz’s Met Gala 2023 outfit is perhaps the best example). Archives serve in part to inform current Creative Directors about the history of the brand and to inspire new designs that use house codes and icons. Fashion objects from the past that are in brand archives are preserved, managed, curated, and promoted by brands. And this is perhaps the difference between vintage fashion and archival looks: control and brand stewardship. A vintage gown might be offered for sale at your favorite circular fashion retail location with no input from a brand. Archival looks are under lock and key and are worn with permission from the brands that hold them in their keeping for distinct mythmaking endeavors- which include both business and creative ends. Of course, depending on who is wearing the fashion object, the line between one’s own identity and the mythmaking of the brand might be a fine one. One of the best examples of this is Nicole Kidman’s Met Gala 2023 outfit, which was the very same dress she wore for her “iconic” 2004 Chanel No. 5 commercial. While referred to as an “archival look” by VOGUE, this dress could also have easily hung in Kidman’s closet as a gift from Chanel or Lagerfeld (other outlets report Kidman “delved into her own Chanel archives”…if only we could see the deed of gift or loan documentation/contract for confirmation…). If the dress comes from the Chanel archive, Kidman’s wearing it is orchestrated by the brand (and certainly approved by VOGUE…). It provides a continued reminder of Chanel No. 5, its marketing campaigns, the product’s origins, and the role that the perfume and even its packaging has played in our everyday lives (perhaps all part of a distinctiveness package that will support Chanel’s filing to register the latest iteration of its perfume bottle as a trademark ). On the other hand, if the dress is from Kidman’s own collection, we have an implicit association with Chanel given the history of the dress, but an added layer of Kidman’s own celebrity mystic and story- a somewhat, we might say, more independently crafted heritage beyond Chanel No. 5. These differences matter for our appraisal of fashion heritage. In deciding what fashion is of historical interest to us we use historical facts but also meaning. If preserving a testament to the Chanel brand is more important, an archival look might matter more. If preserving a testament to Nicole Kidman as a celebrity and woman is more important, the fact that the dress was in Kidman’s own closet might tip the scales. On the other hand, the Chanel brand’s presence is in both options, raising the question of whether we can really ever separate brand mythmaking and brand heritage from the appraisals of fashion as part of cultural heritage in which independent third party cultural institutions are supposed to engage (for more on the nuances of the Met’s relationship with VOGUE in light of the Met Gala see here). Brands play an important role in shaping fashion heritage through their archival looks. But vintage fashion, fashion found outside of a brand’s archive, can too, especially when the messages and meanings of that vintage fashion are unregulated by brands.

Of course, with fashion heritage, it’s important to stay transparent but not become cynical. Context is important and, in the fashion world of brands today, brand heritage can teach us much about founders, the creative process, and the history of a fashion business itself. When transparency is on display, and context is taken into account, even well-worn fashion tropes like the dangers of copying can be nuanced and decoded for their positive impact in the wider fashion universe. And this is where the second implementation of the dress code comes in: many brands took inspiration from Karl Lagerfeld’s past designs, crafting their own Chanel-inspired looks. At the same time, brands copied from their own heritage, re-mixing and re-interpreting in this new “Karl” universe. One of the best examples, that also exhibited links with a fashion object in the collection of the Costume Institute (conveniently also a replica donated by the brand) was Anne Hathaway’s Versace look. A direct quote of Versace’s safety pin dress originally worn by Elizabeth Hurley to the Four Weddings and a Funeral premiere, its tweed texture and white and gold color scheme quoted Chanel while staying true to Versace’s roots.  Self-appropriation meeting inspiration in a Karl universe.

References and Further Reading:

https://www.metmuseum.org/exhibitions/a-line-of-beauty

https://www.vogue.com/article/met-gala-dress-code-2023

Fashion as Communication by Malcolm Barnard

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307735

Mediatization and Digital Media in the Field of Fashion by Agnès Rocamora

Thinking Through Fashion: A Guide to Key Theorists, edited by Agnès

Rocamora and Anneke Smelik

https://www.nytimes.com/2023/05/01/opinion/met-gala-fashion-art.html?searchResultPosition=1

https://www.latimes.com/entertainment-arts/story/2022-05-03/kim-kardashian-marilyn-monroe-dress-2022-met-gala-conservators

https://podcasts.apple.com/dk/podcast/kim-marilyn-and-why-preserving-historical-fashion/id1350850605?i=1000575025392

http://www.aedon.mulino.it/archivio/2017/2/caponigri.htm

https://www.metmuseum.org/art/collection/search?q=karl+lagerfeld&department=8

VOGUE’s May 2023 issue

https://wwd.com/fashion-news/designer-luxury/balestra-present-new-brand-course-1235062423/

https://wwd.com/fashion-news/designer-luxury/italian-couturier-renato-balestra-dies-aged-1235429620/

https://www.ica.org/en/what-archive

https://www.harpersbazaar.com/uk/fashion/fashion-news/a43764253/nicole-kidman-vintage-chanel-met-gala/

https://www.metmuseum.org/art/collection/search/713080?ft=Versace&offset=0&rpp=40&pos=26

https://www.vogue.com/article/nicole-kidman-met-gala-2004-chanel-gown-karl-lagerfeld

https://www.nytimes.com/2015/05/03/style/its-called-the-met-gala-but-its-definitely-anna-wintours-party.html

https://www.thefashionlaw.com/chanel-is-aiming-to-register-the-shape-of-its-no-5-fragrance-bottle-as-a-trademark/

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2504&context=jil

https://www.harpersbazaar.com/celebrity/latest/a43566162/anne-hathaway-met-gala-2023/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=878401

https://www.businessoffashion.com/articles/news-analysis/at-the-met-gala-karl-lagerfeld-was-the-evenings-star/

Images from:

https://fashionista.com/2018/08/chanel-no-5-nicole-kidman-baz-luhrmann-commercial

https://www.vogue.com/article/nicole-kidman-met-gala-2004-chanel-gown-karl-lagerfeld

https://www.harpersbazaar.com/celebrity/latest/a43566162/anne-hathaway-met-gala-2023/

https://wwd.com/fashion-news/fashion-scoops/elizabeth-hurley-versace-safety-pin-dress-modern-update-1203091575/

https://vogue.globo.com/moda/noticia/2023/05/penelope-cruz-rouba-a-cena-no-tapete-vermelho-do-met-gala-2023.ghtml

[fashionbyf]

What makes an American fashion brand a heritage brand? Tom Ford may have the answer…

This week, Tom Ford dropped his last collection for his eponymous brand. Dubbed the “Archive Collection”, the promotional spot for it (watch it here) saw models in select Tom Ford designs from the past 13 years preserved in a glass box, with Tom Ford himself directing them where to stand and how to walk from outside the box, on the street. At the end of the video, the models stand still up against the glass windows, as Ford walks down the street of his past. We might even say he's taking it all in: all these archival designs, his favorite designs, what we might even call, perhaps, “iconic” designs, given their places in the fashion cultural zeitgeist (the Jay-Z inspired jersey dress!).

If there was ever a visual metaphor for archiving a brand and designer’s past, and a timely rumination on the timelessness of design, and how fashion heritage is made, this is it. American fashion brands, despite their innovation and connections to American history, might often be seen as too commercial to be heritage brands in a European sense. At times historicization of commerce in the American fashion sector can even smack of pure marketing, and not even remotely as the heritage marketing that is so prevalent across the pond (Exhibit A: the brand Nicole Miller’s efforts around its 40th anniversary). But, despite their links to commerce and an almost perpetual assumption that more artistically-inclined brands should show in Paris (Exhibit B: Thom Browne then) American fashion brands are not only embracing fantasy, craftsmanship and history stateside (Exhibit C: Thom Browne now), but European luxury conglomerates are taking an increased interest in American brands with a heritage, applying their own brand of magic to make Tiffany’s the new Bulgari (Exhibit D: LVMH’s recently reopened “Landmark” Tiffany store- I could go on about connections to historic preservation...). So, what makes an American fashion brand a heritage brand, a brand which sees its history as a key part of its brand identity and makes that history a key part of its value proposition for its customers?

Tom Ford may be providing us with a blueprint. First, Ford is creating distance between himself and the brand. History, after all, is harder to create when there is no opportunity for distance and at least some objective appraisal. While Peter Hawkings, a “longtime colleague and collaborator” of Ford’s, will succeed him as Creative Director (and, one might think, in a style very Tom Ford- esque, Exhibit D: Hawkings’ glasses in the photograph accompanying the announcement), Hawkings is not Ford, and this passing of the torch still leaves an opportunity for appraisal, even as Ford continues in an advisory capacity. Second, while creating distance, Tom Ford the designer is identifying and pointing to the heart of his brand by choosing these re-issues, the Tom Ford icons, as it were. These designs, along with the Tom Ford trademark and signature TF logo, can serve as archival reference points, starting points for Hawkings as he creates Tom Ford 2.0. In the process, these icons can become part of the Tom Ford brand identity DNA and a central part of the brand’s heritage. When combined with the Tom Ford myth, celebrity connections and cultural moments, sex appeal and design aesthetic, distance from the founder and iconic designs might just make Tom Ford the American fashion brand an American heritage brand.

The law is also central to the success of the heritagization of Tom Ford. Who owns the actual archive of Tom Ford’s tangible designs and sketches? Depending on whether ownership remains with Tom Ford the designer or Tom Ford the brand, and, by extension, with its parent company Estée Lauder, distance may be more or less successful, and original icons more or less accessible. Strength of trademark rights in future designs by Hawkings for the Tom Ford brand, especially those that riff on icons, may hinge on access to the archive and the copying of past designs: consumers need to continue to recognize icons on the market as originating from Tom Ford the brand. Newer designs still need access to archival authenticity, especially to garner consumer buy-in and recognition when new designs move the reference points in the archive further from the original designs conceived by Tom Ford the designer.

Presentations of Tom Ford’s iconic designs as part of cultural heritage in museums and retrospectives can also increase the brand’s fame, commercial strength, and broader connections to cultural moments that ground the Tom Ford brand heritage as part of our cultural heritage. There is speculation that Tom Ford might be the next Karl Lagerfeld, with a retrospective at the Costume Institute. How museum exhibitions present the iconic designs of the Tom Ford era might shape the contours of the historicization of the Tom Ford brand and cement the contents of its brand DNA. But how the Tom Ford brand builds on museums’ presentations in its marketing campaigns and in the products placed on the market will be fundamental to the scope of any possible trademark rights in the re-issued and archival designs Tom Ford has chosen for his brand’s future. These individual choices made by Tom Ford 2.0 also need to walk a fine line between the past and present, timeliness and timelessness. And here we return to the Archival Collection promo spot. It’s all well and good to place designs behind glass, but the nature of fashion still requires that aura of heritage and the past to spill over into the present onto human bodies, as it does on Amber Valletta and other models in the video.

And, on this note, we might see more bodies enveloped in reissues from the Archive Collection on the Met Gala Red Carpet on Monday, providing some clues, and more answers, for the heritage trajectory of the Tom Ford brand post Tom Ford….  

References and Further Reading:

https://wwd.com/runway/fall-2023/new-york/tom-ford/review/

Heritage Marketing By Shashi Misiura

https://doi.org/10.1093/jiplp/jpac105

https://cardozoaelj.com/fashions-brand-heritage-cultural-heritage-and-the-piracy-paradox/

https://ipkitten.blogspot.com/2022/09/guest-post-archival-authenticity-or.html

https://knowledge.essec.edu/en/video/heritage-brands-vs-brands-heritage.html

https://news.fitnyc.edu/event/fashion-culture-event-nicole-miller-in-conversation-with-valerie-steele/

https://www.nytimes.com/2023/04/26/style/tom-ford-final-collection.html

https://www.businessoffashion.com/articles/luxury/peter-hawkings-named-creative-director-of-tom-ford/

https://www.businessoffashion.com/articles/luxury/peter-hawkings-named-creative-director-of-tom-ford/

https://www.wmagazine.com/fashion/thom-browne-fall-2023-nyfw-review

https://www.tiffany.com/stories/the-landmark-fifth-avenue/

https://wwd.com/accessories-news/jewelry/tiffanys-fifth-ave-store-transformation-flagship-to-landmark-1235620166/

http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2504&context=jil

[fashionbyf]

Tom Ford, Archive Collection 2023 

[fashionbyf]

Sundays with heritage, the public domain, and copyright

[fashionbyf]

Marvel meets Cultural Heritage 

Ostia Antica

[fashionbyf]

“Look up in the store’s airy atrium and you’ll see a brightly lit sculpture by Paul Cocksedge, meant to evoke Mr. Dior’s sketches tumbling from his desk. Sculptures by Isa Genzken and photos by Brigitte Niedermair, along with a 2,000 square-metre museum dedicated to Dior’s history, are indicative of the company’s push to elevate its brand closer to the plane of art, following craftsmanship documentaries, exhibitions and the major “Christian Dior: Designer of Dreams” retrospective.”

...

“30 Montaigne’s mix of spectacular and grounded reflects an approach to business that Beccari, who joined from Fendi in 2018, has become known for. At Fendi, the goal of hammering its central message as the Roman house of fantasy and fur was executed in exceptional ways, culminating in a haute fourrure (high fur) runway show that took place not at, but on, the Trevi Fountain, with models walking on plexiglass platforms across the water. At the same time, Fendi cashed in on its renewed focus on fur by pushing small accessories like fuzzy bag charms and keychains.”

Full article https://www.businessoffashion.com/articles/luxury/the-strategy-behind-diors-new-megastore/ 

[fashionbyf]

Lights in Lucca, with phrases from Puccini #culturalheritage https://www.instagram.com/p/B6UYt6nJN6U/?igshid=botgztc5zyf1

[fashionbyf]

You might think that choosing the correct balance of preservation and valorization is a source nation issue, but in the United States we have the same heritage challenges. Here, a local ham and cheese shop in Three Oaks, Michigan that is over 100 years old. Celebrated nation-wide the historic interest of this intangible business is recognized in its listing as a tangible historic property. #USculturalheritage 
https://www.instagram.com/p/B5UILl1p4sp/?igshid=1u0kyka5086tk

[fashionbyf]

Dear Tuscany, You are beautiful. Love, Felicia #toscana #trenitalia #girasole #italia #estate #culturalheritage #landscape❤️🇮🇹 https://www.instagram.com/p/Bzqw-2VAp7y/?igshid=1nq65nu9qqprk

[fashionbyf]

Historic mailboxes ❤️🇮🇹#Lucca https://www.instagram.com/p/BzBhN-wAnGx/?igshid=zh7qwwkwvho

[fashionbyf]

Italian Summer ❤️🇮🇹😍 #lucca #italia https://www.instagram.com/p/By8llssAV3p/?igshid=1wlx3j7m0kx4r

[fashionbyf]

The beautiful, captivating effects of Tuscan light #nofilter ❤️🇮🇹 #Toscana #Italia https://www.instagram.com/p/ByWCxnCAtPv/?igshid=w3r9qek4xatf

[fashionbyf]

My favorite trees are these- Pini Marittimi. Whenever I walk by them today I can still feel the sharp pine needles under my feet that used to get stuck in my jelly sandals when I played under these trees as a child. Especially at dusk, their smell reminds me of my mother calling me in to dinner with my brothers from the yard where we used to play. ❤️🇮🇹 #versilia #italia #naturalheritage #landscape https://www.instagram.com/p/ByEAPlxAxbN/?igshid=11nl8exvb2dix