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Jeff Trexler: “Fashion brands are becoming entertainment companies”

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Intellectual property now holds significantly more value as fashion brands find new uses in the metaverse — and new reasons to protect it, according to Jeff Trexler, associate director of Fordham University’s Fashion Law Institute.

In the past, a sketch for a design was only valuable as the dress that eventually walked down the runway; now, brands can sell two-dimensional or 3D versions of garments, leading to brands becoming increasingly positioned as “intellectual property holding companies”, he said, speaking at the Vogue Business and Yahoo Metaverse Experience.

“Fashion’s relied on their IP for years — particularly trademarks, including brand names and signature images, in terms of licensing or putting the brand on the garment,” Trexler said. “Now, because they can sell virtual garments in the metaverse, copyright for fashion companies has significant value, which means fashion brands are becoming a lot like entertainment companies.” He compared it to the recent transformation of the comics industry, which saw comics IP “become the centre of a multibillion dollar industry,” including films and other franchise deals. The same thing is happening with fashion today in virtual spaces, he said.

He anticipates that external IP holding companies will start wanting to acquire fashion brands, not because they are thinking about the long-term creative value, but because they are thinking about how to exploit their IP portfolio in virtual spaces. This risks fashion brands becoming “an eternality, with garments relegated to the margins,” he added.

With new opportunities, there are additional risks. These can cover data privacy or making claims about digital attributes; if a brand makes claims that a virtual garment gives superpowers, for example, a brand could be sued by a consumer. There’s also the risk of IP infringement. There has already been a lawsuit between Hermés and artist Mason Rothschild over a series of Birkin-inspired NFTs, and Nike filed a lawsuit against StockX over digital renders of Nike’s footwear sold to StockX customers as NFTs. “Many people assume it’s a virtual space and you can do what you want — and may find themselves subject to lawsuits,” Trexler said.

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