Kai Joel Morris
Let’s highlight some important questions regarding intellectual property and digital fashion. Some of these are at the bleeding edge of both law and fashion, and so these questions will have no definitive answers.
Just like with physical fashion, intellectual property is a hot topic in the virtual world. Perhaps more so, as digital assets are much easier to copy than physical goods. But would digital fashion get the same protections as its physical counterparts? For instance, would digital garments get the same copyright treatment as physical garments do in the UK under the Copyright, Designs and Patents Act 1988? Or would another act or legal precedent be better suited?
What about copyrighting specific outfits? The law on this is quite sketchy when it comes to physical fashion, let alone digital. One of the biggest hurdles that comes with the copyrighting of clothes is that you must prove to the courts that your attire is not utilitarian in nature. This is because the legal system generally prevents people from protecting any aspect of utility, as utility has inherent value and should be open for all to use. The courts do not want to stop people from living an easier and more efficient life.
As clothes are needed in the physical world, they are often counted as utilitarian, making copyright harder. Although, there are still some copyright protections available. The case of Brandir International, Inc. v. Cascade Pacific Lumber Co found that if a garment has aesthetic features that are separate from its utility, and express the creator’s artistic ideas, then those elements can be copyrighted.
The question is, does any of this apply to digital clothes? You could certainly make an argument that digital body adornment is necessary (and therefore utility-focused) as it helps us stand out from each other, but would the courts view it like this? Would the courts even view digital clothes as clothes?
As to whether an outfit can be copyrighted, now that is a much trickier question. I have been trying to find a case (in any country) that explores the possibility of protecting the wearing of specific items of clothing together, and I have sadly not found one yet. In the physical world, this may sound unimportant, but it may actually be more significant and pressing on the digital plane as our attire is one of the very few ways we can differentiate ourselves in the metaverse and be perceived as unique. So, perhaps outfits and people’s wardrobes need their own special protections in a legal setting.
What about protections related to copying physical garments and replicating them in a digital format? For protection of this sort to exist, it would require the legal world to recognize a symbiosis between the physical world and the metaverse. Perhaps the legal world would have to imagine them on a similar plane, so that their legal protections carry over, too.
Or, perhaps it would actually become easier to protect against digital copies of physical clothes because the legal world may not recognize the utility of digital pieces. If that is the case, then the legal system would have no other option but to focus on aesthetics and artistry, removing the largest barrier lying between clothesmakers and legal rights.
We have mentioned digital clothes as a means of expressing uniqueness within the metaverse. This takes us fascinatingly close to the legal debate around protecting a person's likeness.
Ever wonder why we see so many ads that feature people who look or represent Albert Einstein? It is not only because he is a household name, but because the Hebrew University of Jerusalem was actually granted the rights to Einstein’s likeness through his will, and then used that as a springboard for renting out his image. This institution is the only body that is allowed to represent Einstein, and if anybody else wants to use him on a piece of clothing or a product or an ad of their own, they must be granted a license.
These are known as personality or publicity rights, and they are an extremely complicated and ethically dense area in intellectual property laws.
You might ask what does this have to do with digital fashion? The answer is that as clothing is one of the very view ways we can express our individuality and uniqueness in the metaverse, the specific outfits we wear could be tantamount to our likeness. They might be the only way we can express ourselves. And so, the question is: should we be able to apply publicity or personality laws to the wearing or combining of certain signature clothes?
And this is only the start. Digital fashion is as much a tech field as it is a creative one, and so there are a wealth of wild and boundary-pushing ideas that may deserve to be patented. The question then shifts to trying to figure out which ideas should be granted patents, and which ideas are so important to the human experience that they should not be limited to one company.
For instance, it is not unheard of for patents to get disallowed if they are believed to hinder our human rights. This is especially prevalent in the pharmaceutical industry where companies try to patent new cures and medicines. But it is not limited to this; a document published by the UN discusses how patents can impact people's right to access their own cultural heritage and enjoy the arts. In that sense, perhaps if a patent in the digital fashion space is going to have a revolutionary effect on how people appreciate both themselves and the world around them, it should be stopped.
Not only this, but the web3 and wider cypherpunk space often foster heated debates about whether intellectual property rights should even exist at all. This might sound strange as most people are open to the notion that original ideas should belong to their creators, but there is also a strong argument for considering all ideas as part of the public domain. Cypherpunks communities are usually anti-hierarchy, so they often also make the argument that intellectual property rights allow powerful corporations to hoard ideas and even steal them from less advantaged locations.
These are just a handful ethical of questions and topics within digital fashion and intellectual property. Hopefully, this provides an insight into the sheer breadth and nature of this space.
