At a time when brands are grappling with intellectual property considerations when it comes to digital assets and NFTs, this offers an intriguing example of how fashion brands and artistic interpretations can coexist.
Some brands might find it beneficial for Web3 creators to introduce the brand to a new, influential audience; in other words, it might make them look cool. “Guccighost gave [Gucci] serious credibility, in the way it was able to connect with the whole streetwear vibe. It helped give an edge to a quintessential elite brand,” said Jeff Trexler, associate director at Fordham University’s Fashion Law Institute. “Gucci could have taken another direction; they could have said: ‘What you do is use our brands to sell street art’, but they understood very quickly that it could serve them. They might also want to avoid the risk of a court finding that an artist’s use is indeed fair use, which could encourage others to do the same, he adds.
Another option, Maccarone says, is a smart contract that includes royalties for the artist and brand. She adds that, as with physical goods, a consumer who wants a genuine product is unlikely to want a carbon copy, and a brand that feels its intellectual property has been unfairly used could “use it to its advantage”. by gamifying the project, for example by allowing people to buy a token that allows them to exchange the item to enter a prize draw for genuine good.
Not all artists were warmly welcomed. Mason Rothschild, creator of the Metabirkins NFT digital collection, is now facing a legal dispute with the creator of Birkin Hermès, alleging that the artist is violating federal trademark law while diluting the quality of the Hermès brand. Rothschild’s position is that the work is protected by the First Amendment, that digital bags are not actually bags, and that the intent was not to mislead consumers. (Hermès did not respond to requests for comment.)
Some brands might find it risky to “allow” copycats lest they send the wrong message, says Trexler, forcing brands to pass judgement, says Trexler. “Some might think that if you do this kind of thing and send a message that you’re graffiti friendly; it doesn’t take long before everyone is like [the invasive plant] kudzu and uses your trademark. They will be the trademark red algae. Guccighost, he says, landed at the right time with the right company; conversely, Hermès was perhaps not the right company to provoke.