In a world ruled by the internet and one where accessibility is everything, a personality that seems closer to life through their social media presence rather than the movie stars and celebrities who are so close to being run over by the paparazzi. A factor of trust and believability in someone who probably struggles with the same issues as their audience gives them the power they hold. “With great power comes great responsibility” which even the influencers must be cognizant about.

1. They need to be mindful of the effects of their content

Influencers as indicated by the statistics above affect consumer behavior a lot. Which gives them the space to both negatively and positively affect the industry. Much like any product-based business, companies working in fashion also rely highly on the sales curve, altering business model, supply chain and marketing based on sales analysis. Influencers today have the power to start and end multinational businesses that have been standing concrete for years now. Fashion industry produces more waste than any other industry, and if the channels between the manufacturers and consumers are not mindful of what they are promoting and how much they are promoting, they eventually start promoting consumerism and not the product. Influencers have facilitated the growth of fast fashion brands like Shien and Fashion Nova which are companies that not just generate immense amounts of waste but also are not the best at paying a fair wage to their workers and employees, leading to human rights violation and harm to the planet.

2. Misleading your audience might not be advisable

There’s an ethical conundrum every influencer faces in their day-to-day decisions, is being true to themselves and their audience more important or financial prowess? Are values and ethics also for sale when you are a personal brand using face value to win over followers in exchange for money from big companies? Such a conundrum often leads these influencers in a position where they start misleading their audience and followers because that might just be the easier and more comfortable option. It is pertinent to mention here that advocating sustainability and ethical consumerism is in itself a privileged capitalist stand. Sustainable fashion influencer Aditi Mayer, focuses on small brands with high labour standards but will sometimes agree to partnerships with bigger brands under the Faustian bargain that the more financial freedom she has, the more she can work with emerging brands with smaller budgets.[1] Even though choosing financial freedom over sustainability is not a choice one does not understand but many influencers even choose to go along with the malpractice of greenwashing and false promotion of ethics by the brand which might not be an ethical practice. For example, Maisie Williams endorsing the new loop technology by H&M was a misleading technique. Not only is the technology slow and yields minor results, but is also very difficult to acquire. Even though it was a step in the right direction, for a company that is producing at such high rate, loop technology does not do the proportionate good to the harm brands like H&M are causing. Maisie Williams as a result not just claimed and promised something that seems unattainable in the near future but is too close to a lie.

3. Due diligence is always a good idea

Influencers are many a times also misled by companies with respect to them fulfilling their corporate social responsibility. Ms. Meyer, as a practice to save her credibility from the lies of these brands and companies, uses meetings to ask questions about all that they truly do as part of the due diligence, even when such questions are not really met with kindness. This practice might be the best for every influencer to understand what they are endorsing and may be able to save their audience a lot of harm by just avoiding a few words and still managing to work for the brand. Corporate social responsibility is something that companies look at with contempt and as a “have-to-   do”, if they could choose to avoid it, they would, but as individuals in the public domain it’s the responsibility of influencers as consumers themselves to perform due diligence towards the brand they are collaborating with in order to do right unto their audience.

Even though the industry with respect to influencers and their responsibilities is not a space governed by any laws or regulations, the past years have seen names like Madhuri Dixit, MS Dhoni, Amitabh Bacchan et cetra, who are walking icons and arguably have a fan following that is not only religious towards them but is also in a number of millions. A country which gathers in front of the houses of movie stars just to get a wave from the, in a country that is not short of building temples for them doesn’t choose to question the claims made by their idols or so called “gods”, but don’t the gods hold some responsibility towards to their followers or is it just about the cash? The court through these cases have tried to establish what they owe their audience

Brand ambassadorship curtails one of being critical of a product or brand that is paying them hefty amounts to merely hold the product in front of the camera. Such agreements attach an aspect of exclusivity and unconditional support from the celebrity towards the brand or product and an illusion that the stars use the product they are advertising. This allows for lack of certain amount authenticity from the celebrities and a bias based on nothing but the amount of money a company can pay these celebrities for endorsing their product line. This paradigm was recognized by the audience over the years and influencers seemed to solve the problem of lack of authenticity because they looked and felt like the same people as their audience. They were ready to put their personal and professional life forward in a raw form through their handles while the movie stars were mostly spotted hiding their true personality and only filtered and scripted content reached their fans.

Today, influencers play an extremely important role between the consumer and the brand. They have better access to the consumer and the consumer has better access to them, giving companies a bridge to reach the eyes, mind and ears of their true consumer quicker and better through their phone screens. Even the New Yorker in a parody article talked about how influencers have made everything an ad and the matter of authenticity and ethics is on the backburner.

REFERENCE LIST

Gibson, D. (2017, October 24). How to be an amazing influencer like me. The New Yorker. Retrieved December 15, 2022, from https://www.newyorker.com/humor/daily-shouts/how-to-be-an-amazing-influencer-like-me

M., S., & K., S. (n.d.). Impact of Influencers in Consumer Decision Process: the Fashion Industry. Retrieved December 12, 2022, from https://www.scms.edu.in/uploads/journal/articles/article_12.pdf

Marvel Worldwide, Inc. (1962). Amazing fantasy #15: Spider-man!

Morgan, E. (2022, September 7). How influencers accelerate the growth of fast fashion and greenwashing. Eco Stylist. Retrieved December 15, 2022, from https://www.eco-stylist.com/how-influencers-accelerate-the-growth-of-fast-fashion-and-greenwashing/

Skeldon, P. (2022, June 8). Social influencers have led to the rise in fast fashion, with 30% of shoppers using Instagram for inspiration. Internet Retailing. Retrieved December 15, 2022, from https://internetretailing.net/mobile/social-influencers-have-led-to-the-rise-in-fast-fashion-with-30-of-shoppers-using-instagram-for-inspiration-20388/

Slone, I. (2022, February 8). The moral quandary of ‘slow fashion’ influencers. The New York Times. Retrieved December 15, 2022, from https://www.nytimes.com/2022/02/08/style/fashion-influencers-sustainability.html

[1]

You must also wonder, why has only NFTs managed to make fashion high-tech? was Zendaya’s Met Gala Cinderella not it? Well, the idea of exclusivity and uniqueness is one of the fundamental derivatives for any fashion enthusiast. They demand and expect their clothes and accessories to be one of a kind, especially when they are spending on luxury brands. NFTs allow for this expectation to be fulfilled along with giving a higher amount of creative freedom to the designers and creators of such clothes. The fashion industry, an industry that was only lucrative until the product became tangible can now become an industry that can function on intellectual, creative and artistic prowess rather than an expertise in product design and engineering. It’s now a symbiotic relationship, NFTs being a crypto technology ensures the design is only owned by as many people as it was made to, reducing the risk of counterfeited pieces along with ensuring intellectual property rights, while fashion bringing the technology to a forefront, in the eyes of the people.

The non-fungibility of this crypto technology is also the biggest asset for designers ensuring not just the uniqueness of the design but also allowing them to track the ownership, sale and purchase of their piece, as many times as it may be sold without the physical wear and tear of their piece of art. Through the NFT technology any and every piece sold can be used to collect royalty from each sale and purchase of their piece. The question now remains, that is the current law and understanding of trademark and copyright translate to the digital world as well as it does to the physical? A recent lawsuit filed in New York by Hermes Birkin against an artist Mason Rothchild seems to be the channel to move the law forward. Rothschild created a range of NFTs based on the Hermes Berkin Bags with faux fur, which led to a lawsuit and a cease-and-desist letter, to which Rothschild replied, that by the First Amendment, his work as a piece of art and hence is allowed to be his interpretation of the world. The US has started its journey of modifying the law so as to accommodate the digitization of art, design and all intellectual property. India is yet to see a development in laws for the benefit of artist and designers creating pieces in the form these Non-Fungible Tokens. 

The advent of NFTs in the market is raising many new questions in trademark and copyright law. One of the most popular NFT ranges – the Bored Ape Yacht Club or BAYC by Yuga Labs is seeing trademark litigation in California. Most NFT content licenses don’t convey any intellectual property rights but in this case the license gives the owner the license to not just display the piece but also the right to create derivative pieces using the BAYC characters and brand. Ryder Ripps, the defendant in the Yuga Labs litigation created NFTs using the BAYC images. Yuga Labs claims that they are exactly the same, even the numbers assigned to these NFTs by Yuga Labs are the same, and this may cause confusion among the people about this being the original bored ape NFTs. The only difference according to Yuga Labs is the title of the NFTs being RR/BAYC and not just BAYC. The NFT images by Ripps also contained symbols like a skull on the clothing worn by the bored apes in the original images which are being trademarked by Yuga Labs. This case poses a very straightforward question of trademark and licensing but how is something like this to be enforced or adjudicated upon while the rights through First Amendment that are being invoked by Rothschild in New York? An understanding of the global nature of NFTs needs to be understood by the courts. Much like the internet, NFTs transcend state or national boundaries, different jurisdictional laws applied to NFTs might just be counterproductive.

In the recent Nike v. StockX case brought forward the first sale doctrine in trademarks and discussed how it comes into play in a digital property. The defendant, StockX is an online resale platform that started selling NFTs with Nike sneakers. Nike filed a suite for the infringement of trademark while stockX took to the argument that those NFTs are based on legally purchased physical products, and owners of the NFTs can anytime exchange it for the physical product. The first sale doctrine in patent and trademark law has the right to use that item for its ordinary intended uses and to resell it without harming any entities intellectual property rights. The assumption is that the intellectual property owner received the compensation on the very first sale of the product. Even this doctrine has its limits, it does allow the buyer to use and resell the product but not to create other products bearing the trademark, a question then is if the NFT and the physical product are considered the same or separate assets? If the former can be proven successfully then StockX may have a case, establishing the rights of the owner of an NFT.

This area is so new that no law has even sought to identify the intellectual property attached with all things NFT. It’s an area that not just poses question in intellectual property law but also how technology will be governed and regulated in the future world largely transcending towards metaverse and virtual reality. Such litigations are a step forward to a more codified structure of law governing the virtual world and properties so derived from it.

REFERENCE LIST

Alexander, B., & Bellandi, N. (2022). Limited or limitless? exploring the potential of nfts on value creation in luxury fashion. Fashion Practice, 14(3), 376–400. https://doi.org/10.1080/17569370.2022.2118969 

Joy, A., Zhu, Y., Peña, C., & Brouard, M. (2022). Digital Future of luxury brands: Metaverse, Digital Fashion, and non‐fungible tokens. Strategic Change, 31(3), 337–343. https://doi.org/10.1002/jsc.2502 

Kirjavainen, E. (1970, January 1). The future of luxury fashion brands through nfts. The URN resolver of The National Library of Finland. Retrieved December 21, 2022, from http://urn.fi/URN:NBN:fi:aalto-202205022974 

Media, N. (n.d.). Copyright and nfts: New wine in old bottles? World IP Review. Retrieved December 21, 2022, from https://www.worldipreview.com/article/copyright-and-nfts-new-wine-in-old-bottles 

Michaels, A. C. (2022). NFT litigation is raising novel trademark questions. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4194097 

Muraca, C. (n.d.). The ‘metabirkin’ and the beginning of trademark litigation in the NFT Space. LARC @ Cardozo Law. Retrieved December 21, 2022, from https://larc.cardozo.yu.edu/aelj-blog/308/ 

Okonkwo, I. E. (2021). NFT, copyright and Intellectual Property Commercialization. International Journal of Law and Information Technology, 29(4), 296–304. https://doi.org/10.1093/ijlit/eaab010 

Schmitz, A. J. (2022). Metaverse arbitration for resolving blockchain disputes 1.0…. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4144760 

Schmitz, A. J. (2022). Resolving NFT and smart contract disputes. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4162969 

Sestino, A., Guido, G., & Peluso, A. M. (2022). The interplay of consumer innovativeness and status consumption orientation when buying NFT-based fashion products. Non-Fungible Tokens (NFTs), 63–75. https://doi.org/10.1007/978-3-031-07203-1_6 

Wang, D., Ren, Q., Li, X., Qi, Y., & Zhou, Q. (2022). Defining consumers’ interest and future of NFT Fashion. Advances in Social Science, Education and Humanities Research. https://doi.org/10.2991/assehr.k.220401.111 

Vjayakumaran, A. (2021). Nfts and copyright quandary. Journal of Intellectual Property, Information Technology and Electronic Commerce Law, 12(5), 402-413.

Yanisky-Ravid, S., & Monroy, G. (2022). The promised land: blockchain and the fashion industry. Brooklyn Law Review, 87(2), 609-656.

Madison Yoder, An “OpenSea” of Infringement: The Intellectual Property Implications of NFTs, 6 U. Cin. Intell. Prop. & Computer L.J. (2022)
Available at: https://scholarship.law.uc.edu/ipclj/vol6/iss2/4

Lim, K., Richardson, M., Teoh, S., & Seto, W. (2022). More on convening technology: blockchain, fashion, and the right to know. SCRIPTed: Journal of Law, Technology and Society, 19(1), 36-60.

Fairfield, J. A. (2022). Tokenized: the law of non-fungible tokens and unique digital property. Indiana Law Journal, 97(4), 1261-1314.