SL Fashion – Copying or Inspiration?
by Alphaville Herald on 18/04/08 at 5:24 am
by Tenshi Vielle
I’ve noticed a lot of confusion about copying and inspiration from other designers, whether it be in real life or in a virtual world. Let’s look at the subject and “where the line is” — it might help all of everyone clarify where they stand.
Maximilian Milos had an experience last year with Herman Miller. Maximilian really enjoyed the HM designs, and wished to bring them in world. He did what few other designers do – he contacted Herman Miller for permission. HM granted Max permission to replicate their designs.
“Bulletproof Babyphat 2″ on sale at SLExchange
However, after a bit, HM began looking into Second Life and around the time that Armani was moving in, HM contracted Rivers Run Red to replicate their products for Second Life. Max was a little concerned, so he contacted HM again and was assured that he was fine, and not to worry.
Max did stop selling his HM recreations after finding out that Rivers Run Red would be doing direct work with the company. He exercised caution – something other people might not have time to do.
Two weeks later, Max logged in to discover that all of his HM creations were missing from his sim – the Lindens had deleted them. Whether this was action from Herman Miller or Rivers Run Red, Maximilian isn’t positive. He never received a cease and desist letter — his items were simply gone. Maximilian wasn’t trying to pass the items off as his own designs; he takes care to always clearly credit the original designer. HM wanted it gone, and thus it was so – the Lindens made sure of it. You can read Maximilian’s reaction at SLNN
Now imagine this scenario with less communication. Many designers in Second Life both fail to ask permission of the original designer and also don’t bother to give credit by leaving a notecard with the item.
Fashion in Second Life carries data strands along with it – that’s called a UUID. It identifies the particular texture or prim object within the system. Suppose the original company happened to come into Second Life, discovered the replications and demanded that Linden Lab remove them. Linden Lab could, potentially and if pushed hard enough, call up the UUID and delete every single item out there.
After all, we did and do agree to the Linden Lab Terms of Service every time we log in, stating that anything we upload to their servers is, effectively, the Lab’s if they so choose.
Now, let’s take a look at the real world for more information. I’m sure some of you from the United States are familiar with the chain “Forever 21″, which displays their knockoff clothing without order, without care, under blaring florescent lights and deafening techno music. “Forever 21″ isn’t exactly an innocent shop chain — they’ve experienced lawsuit, after lawsuit, after lawsuit – and mostly from designers.
Diane von Furstenberg filed a copyright infringement lawsuit with Forever 21 over the copy of two dresses – the “Aubrey” and “Cerisier”. Neither are perfect duplicates of DVF’s, but they’re “close enough” to get a lawsuit go-ahead. The lawsuit is based on the fabric designs. The lawsuit goes on to say that Forever 21′s dresses are near to exact scale of the DVF’s and the color is also dead-on. The infringement, they say, was willful.
Diane Von Furstenberg “Cerisier” dress on the left, with Forever 21′s copy on the right.
The DVF lawsuit also contains more allegations of copyright infringement, federal and state unfair competition, false designation of origin and unlawful deceptive acts. DVF asked that Forever 21 recall and remove all of these dresses, including advertisements that depicted the items. DVF also asked for “unspecified” financial damages — maybe compensation for all revenue generated? DVF’s motivation was and is simply to protect her brand’s intellectual property.
The DVF vs. Forever 21 suit occured in March of 2007. She is, effectively, the person that “got the legal ball rolling” – she paved the way for other designers to file lawsuits and gave people like Gwen Stefani( http://www.msnbc.msn.com/id/19815731/ ) the ability to also file a lawsuit with the Forever 21 chain over design infringement – or direct copying and Stuart Weitzman used DVF’s springboard to take on JCPenny.
You can follow the Harajuku Lovers LLC v. Forever 21 Inc. lawsuit – the jury trial for the case is scheduled for October 28th, 2008.
Legally, the only thing that a designer can copyright is something absolutely distinctive – a logo (Babyphat, anyone? Louis Vuitton?) or a particular pattern (Burberry), occasionally going as far as embroidery. However, while one might not obtain a copyright, it is possible to gain a patent for a particular item – and patents tend to hold up in court.
“Louis Vuitton” Rosher Bag, on sale at SLExchange
“In an age of ‘knock-offs,’” says Sheppard Mullin of FashionApparelLawBlog.com, “patent protection is an avenue that can be used by the fashion and apparel industry to protect products.” There are two sorts of patents that fashion as a community can use – “utility patents” which protect the way an invention is used and works, and “design patents”, which protect the ornamental appearance of a useful article.
Patent infringement exists if an impartial observer cannot tell a difference – or thinks that two products are similar enough that the products are both by the same company. Immediate recognition is the problem – not variations. Someone could say, “Oh, I like that hem!” and add, say, a princess-cut sleeve and military style cuff to top off a shirt and it would be, effectively, changed enough to avoid a lawsuit or simple infringment.
One news article I read today claimed that “piracy” of all things was the motivation behind the fashion industry. Not so. The fashion industry is propelled by innovation and development, not outright piracy of designs. Mullin, of the aforementioned blog, urges new designers to consider filing for patent protection to curb rampant imitation.
Diane von Furstenburg recently told the LA Times that design piracy is “counterfeiting without the label”.
And of course, underground counterfeits are rampant in real life but are not unknown. The Los Angeles Police Department recently conducted a raid that confenscated over $8 million in counterfeit goods and arrested 26 people. The copied designs ranged from Prada to Rolex, Fendi to Gucci.
Balenciaga’s Fall 2007 design on the left, Paper Couture’s following creation, as covered previously on Shopping Cart Disco.
One might argue that Second Life fashion, boiled down, is nothing more than an image of the original outfit, and therefore not infringing on anything nor stepping on anyone’s toes. This is not correct.
As near as I can tell, Photosourcing is the worst offender in all of these cases because it doesn’t allow for the variations – colors, logo mishmashing, etc – that could save you from legal trouble. Hand-drawn items come into issue when they are recognizable, and the original creator is not attributed.
Alexander McQueen on the left, Cachet on the right, as covered previously at Shopping Cart Disco.
Cachet is co-owned by Minnu Pallen, who recently went through a situation of Second Life content theft, preceeding the release of the McQueen Cachet dresses.
One might also argue that Second Life is the best place to have these things, since they are unobtainable in “First Life” for so many. But at what cost? What happens if the original designer discovers what you’re doing as a virtual designer, virtual artist – and worse, discovers that you made capital off of it?
The best you can do if the original company comes after you (seeing as how Second Life is splattered all over the internet and Flickr, and god knows who you’re actually running into in Second Life – I hear Drew Carey logs in with his girlfriend) is play possum. Fork over everything, delete it all off of the SL servers and apologize profusely. I would imagine that refusing to do so could result in some severe actions from the original company and designer, spurred on by anger over theft.
Better yet, don’t create these distinctly copied items at all. It’s not that we don’t enjoy them. I’m sure we all enjoy a knockoff or two on some level. It’s just the fear of legalities and artistic integrity that smell funny in the end.
—Special thanks to Sheppart, Mullin, Richter & Hampton, LLP for running such a fantastic setup of legal information.
IshtarAngel Micheline
Apr 18th, 2008
Wow i love this article and very well researched. Photosourcing an original object and recreating it in SL is something i dont understand. I mean why do it when you can create anything here. Sure in small ways we are insprired by a piece of art, clothing or even a purse. Use that inspiration to create something new and original.
Corona
Apr 18th, 2008
three thoughts re copyright
what if someone brought a prim item and then added some impovements to the basic item as purchased and then were to sell on the modified item – at a price which reflects the mod work put in
adding of textures to own creations
what if someone were to buy an expenseive outfit – and then put it in their shop as a freebie cos they were anti-profit or some other reason
( not saying i have done any of these things – just that they are theoretically possible)
Ann Otoole
Apr 18th, 2008
You forgot to mention how easy it is for rl clothing/fashion makers to rip off original designs from Secondlife(TM). So you think it is hard to watch the grid for your stuff being ripped? Try watching over planet Earth. And I bet the rl stuff sells for way more too. And i bet filing a DMCA in rl won’t work. And that lawsuit will be harder and more expensive.
Ari Blackthorne
Apr 18th, 2008
I agree – too much photosourced junk and absolute copies from people who know photoshop for fireworks or gimp and a sears catalog are going crazy.
That’s why I insist my better-half (doing pretty good so far) do original and completely dreamt-up designs from her head only. Meh. I don’t shop for clothing anyway. I’ll leave that to the ladies.
T-shirt, jeans, sneakers. Done.
LOL
DaveOner
Apr 18th, 2008
You “fashion” tards should try ripping off new stuff instead of shit from the last 5 years…or start being original.
Although, I guess if you guys were any good at making clothes then you’d already have real jobs and no time to play in a video game!
Shit’s a joke! You just don’t get it yet!!
Nacon
Apr 18th, 2008
“I’ve noticed a lot of confusion about copying and inspiration from other designers, whether it be in real life or in a virtual world. Let’s look at the subject and “where the line is” — it might help all of everyone clarify where they stand.”
Hahahahahaha… I guess you haven’t heard such thing about fashion drama or killer. Just about any fashion-hearted brand fan would kill and beat someone up if one tried to steal an fashion idea.
So uhh… did you finish high school yet, Tenshi?
Darien Caldwell
Apr 18th, 2008
It’s about time someone wrote an article like this. The examples you provide are striking, and are just the tip of the iceberg as far as goods in SL go. So many things I see are often exact duplicates of things from real life, and yet their SL ‘creators’ are applauded as stunning examples of creative geniuses. It would be more creative for them to have made something with no real-world parallel.
Being inspired by things you see is normal. It’s the basis of everything we do as the human race. When learning to walk and talk as an infant, it’s by observing and imitating the people around us. Learning at the root is observing, memorizing, and imitating. There’s nothing wrong with that in itself.
Imitating and Copying are different however. Copying is a push-button prospect, none of your own indivdual style, flair, personality, or perspective ends up in the result. Imitation should be a re-interpretation of the original, with your own impression left on the result. That is at the core of creativity, taking something and remaking it anew. At least in my humble opinion. Thanks for the thoughtful article.
Unwashed Mass
Apr 19th, 2008
Seems to me that there’s a vast difference between creating an article which has the same purpose and potential market as the original article in real life, and duplicating the look of said article for application to an avatar in SL. Copyright is copyright, but as we all know since the blogging slaughter of yer Minnu woman, it’s more the ethics of ‘taking inspiration from’ which matter. If it hadn’t been for that terribly condescending ‘education’ commment by the aforementioned, I probably would have agreed with her that she’d done nowt wrong
It’s all so blinkin pompous, this ‘omg, she stole a rl fashion person’s designs!!!’ – ffs we’re all playing Barbie here, and building dollshouses – yer really want to take it seriously???
Gwyneth Llewelyn
Apr 19th, 2008
In the Olde Year of late 2004 (or was it early 2005?), I had this immensely original idea. I’m a big Harry Potter® fan, and with some friends, we started to design a Magic Wand Duelling Game, clearly inspired on Harry Potter’s books. After we had a rough, working conceptual design, and a very early prototype, it was time to get proper authorisation.
Through some of my contacts, I managed to track down first Rowling’s agent and secretary, and patiently stated my intentions. I did also propose a licensing scheme, where I would pay a percentage of the revenues from selling items for the Magic Wand Duelling Game, and send them to Rowling’s estate. I made it very clear that we would be talking about “pennies” here, not millions of pounds, but that the model would give (even) more recognition and awareness to Harry Potter, I’d be bearing the costs of labour and in-world advertising and promotion, and Rowling would get a cut of the meager income that would come from selling items in Second Life. Their advantage? “Being in a virtual world” without absolutely no investment.
Rowling’s agent was curious and open-minded, but they had already sold the licensing rights on anything that sounded like an “online, multiplayer game” to Warner Brothers. They very nicely pointed me to their lawyers.
Fortunately, I got in touch with a computer-literate lawyer. He reviewed my arguments (‘Second Life is a platform for social, inline, 3D environments — not a “game” — although “games” could be developed inside SL’). The exchange of emails were incredibly polite, helpful, and I felt I was communicating with someone who found the idea interesting.
Unfortunately, they were also working on the development of the “Official Harry Potter MMORPG” at that time. So they declined my proposal, and urged me (always in very gentle, patient, and friendly tones) not to use any trademarked or licensed content for my own game. After some consultation, they internally decided that they would NOT allow ANY Harry Potter content on ANY online platform whatsoever, since they expected to launch their own.
I thanked them for their patience and open-mindedness in spending the time to explain it all to me, wished them good luck in launching their game, and stated my willingness to continue the discussion if at some point they considered rethinking their statement. Obviously, I never expected that would ever happen (it didn’t).
A few months after that, I suddenly was teleported to a WHOLE SIM with Harry Potter content. And after a short tour buying a few items (mostly clothes…), someone told me: “Oh yes, this is just one of the many sims about Harry Potter, although we’re the ones with more shops
and with better designs.” I was shocked. Naively, I teleported to all those sims, and saw not only piles and piles of clearly HP-related content, but at least two different systems of the Wand Duelling Game, from different designers!
I couldn’t do anything. In fact, I was probably the *only person in Second Life* that was *explicitly banned from creating Harry Potter-themed content in SL*, since I had a few emails from the license holders that stated exactly that. I couldn’t claim that “oh, I didn’t know”. I could not protest: “why are you forbidding *me* to promote Harry Potter in-world, and even pay you royalties on the copyrighted material, while at the same time, dozens or hundreds of people are making small fortunes out of completely unlicensed HP-themed content??” If I did, I would attract attention to myself. In fact, I’m happy that we have LL’s permission system in place; I was a bit scared that some of the lawyers would log in, get shocked about what they saw, and blame *me* for that — since I was the only person ever asking for permission.
I mean, we weren’t even talking about “imitations”, “derivative art”, or something like that. It was content using all trademarked names, all copyrighted designs, etc. that are lawfully held by Rowling’s estate.
I remember that I was both sad and furious, but I did nothing…
After a year or so, I think that the IP owners to the HP content “on virtual worlds” filed a DMCA claim, or sent the content creators some nice cease & desist letters, because they have since then at least changed the *names* of their items. But in the mean time they had swamped the SL market for HP content and established themselves as providers of cool design. Who cares if they changed names from “Hogwarts” to “Pigwarts” or something like that?… Their customers would still come and buy things from them.
Probably they are still laughing at how someone could be so silly and naive and ask permission *first*.
I believe that this article fails to mention a very important side-effect. Piracy actually *helps* to get a content creator *started*. They might just copy a design from Vogue, and promote it “get a dress just like Armani launched this spring in Paris”. People will talk about how cool it is, and come to the shops, and buy like crazy. At some point, of course, Armani might file a DMCA claim against the avatar, and get them to willingly or forcefully remove all Armani-branded content. But if this is done cleverly — begging for forgiveness — they’ll have established themselves already. People will have landmarks to the “Armani” shop, even if it is now called “Armandi” and the designs are ever so slightly different. Or even totally different. They might be even above average.
However, the harm will have been done. Ripping off designs, illegally using trademarks or copyrighted content, pays off to establish a reputation. You can always claim to your customers “oh, I was a big Armani fan, I was promoting their brand in-world, but the big, mean, lawyers don’t care about SL residents and are always happy to squash the small people like us”. And the customers will only nod and shake their heads at the Big Brands’ lack of openmindedness.
Being a content pirate — specially if you’re starting and need to get a reputation very quickly, in order to start selling like crazy — is a very profitable business, even if it’s only to get you started. Being honest and asking for permission first is just being naive.
My morals, however, don’t give me a choice — I’ll remain poor and unknown, but I’ll keep my honour, reputation, and honesty intact, even if none of these help to pay the bills
Aya Pelous
Apr 19th, 2008
I work for a club that has a vender with baby phat inspired things….I personally would not wear baby phat in real life let alone second but it made me wonder about the creator…it made me wonder about another design ive seen at Icing…the red dress that was inspired from Ann Hathaways dress to the oscars. I loved the store Icing but after I saw how much of a rip off that store is i stopped going. I have morals-to each their ya know? Anyway-the fact of the matter is nothing actually original anyway. Its the fact that someone has their own blood sweat and tears into the clothing that I like buying. I Original things but there is a very very very small percentage that is original now a days. Sadly. Oh well. We buy what we like. Kudos to the ones with original ideas. And Im sorry to the ones with none.
Alyx Stoklitsky
Apr 20th, 2008
The law is an ass, and copyright law is an even bigger one, as goes completely against human nature in favour of big business. Corporate whoring at it’s finest.
I follow my own moral compass, not some one-sided rules written by a team of lawyers with questionable agendas.
Alyx Stoklitsky
Apr 20th, 2008
in b4 “you have no moral compass”
Ran Garrigus
Apr 20th, 2008
I actually like Icing’s “Miss Hathaway” dress. It’s well-executed, it gives a nod to the origins without conflicting with anyone’s trademarks, and it is as far as I know _perfectly legitimate_. I can understand the upset, I suppose, at someone taking inspiration from the designs of others and then trying to hide or deny these inspirations. I simply cannot understand why Icing very clearly indicating that the dress was inspired by an RL gown, and nodding in direction of the source, is a “rip off”.
Unless you’re concerned that all the dress designs there are “rip offs”, I suppose, but given that she explicitly called attention to the “Miss Hathaway”, doesn’t that suggest that that was a one-off?
In any case, I think there’s a fair amount of substantial discussion regarding this post here, following Tenshi’s posting of it at her own blog, that might be useful.
Wendell Holmer
Apr 21st, 2008
Well researched, well written, interesting and useful. Good job, Tenshi.
Dr. Internet
Apr 22nd, 2008
This is why I laughed at all the fashionistas bitching about people stealing their clothing designs and skins.
They rip off IRL clothes and you can tell they use others’ designs as a basis of their own. I rarely can see a difference between most skins, other than price.
Aya Pelous
Apr 24th, 2008
It was executed well but does the icing owner actually give a nod to the designer? Not the wearer of the dress. Anne Hathaway only borrowed the dress.
–Aya Pelous—