HUMAN RIGHTS

Only the modeling industry demands its workforce to wear clothes that are usually uncomfortable for the perfect shot in severe weather conditions and locales. Continuous pressure modelling works in a kind of institutionalized tyranny when it comes to harassment, starvation, despair and poor living standards. Models often consume tissue and cotton balls to kill their fatigue, experience colour and racial discrimination, sexual harassment, drug and alcohol misuse, invasive backstage and unacceptable pornography, human traffickers, etc. Robust hours of work, substance misuse, excessively tight diet, sexual and physical abuse are only a few of the models’ difficulties.

When models stand out for themselves, they are met with ignorance and avoidance, and they may even lose their jobs. These issues and the misery evoke fundamental human rights such as the right against human exploitation, the right to health, the right against discrimination, the right to physical and psychological integrity, the right to life and liberty, the prohibition of torture and inhuman treatment.

RIGHT TO PRIVACY

The right to privacy is the fundamental right to be left alone and not to be subjected to public observation without consent. In the context of photography, this means that pictures of an individual cannot be shot without his or her agreement when he or she has a reasonable expectation of privacy, such as in a restroom. The Right to Privacy further says that photographs of a person must not infringe in an unjustified way on the subject’s private or family life. During fashion shows, it is common to see that the organising company has not provided proper changing rooms for the models or has overlooked the basic requirement of restrooms and sanitization.

Though regulations differ by nation, it is usually understood that every photograph taken for commercial reasons requires a model release form. When a model signs a release, he or she “releases” the rights to the photographs in which they appear. This indicates that the model acknowledges and accepts that the artist is free to do whatever they want with the images, including publish, republish, distribute, and modify them, unless the model states otherwise.

However, we have seen examples of photos being used for improper reasons without the model’s consent, and we have also seen cases of photographers infringing on numerous models’ right to privacy.

In India, Article 21 of the constitution guarantees an individual who is a citizen of the nation the right to life and liberty; we also have The Indecent Representation of Women (Prohibition) Act, 1986 to protect women from being exploited; however, nothing similar is available for other sexes.

PRINCIPLE OF EQUAL PAY FOR EQUAL WORK

Modeling is one of the few female-dominated fields; nevertheless, as much as we support women’s empowerment and the feminism movement, we cannot ignore the reality that men in the business are not paid as much as women for the same quantity of work. According to Elizabeth Rose, a modeling agent, the wage disparity between men and women is large and “unfair.” Male models, according to Rose, earn a fraction of what women do, up to 75% less.

“All of the top 10 female models make millions,” Rose added. “Only the top three male models earn more than a million dollars.” She claims that while this tendency is changing, it has lasted for so long because advertisers claim that “women spend more money on female commodities,” making the sector more rewarding for female models.

In India, we have the Equal Remuneration Act of 1976, however, an Act designed to safeguard women’s rights is not given much attention when the opposite sex is discriminated against and not compensated for their contributions so often.

Although, We cannot deny that various countries and entities are trying to provide Fashion Models with better and equitable compensation while respecting their rights, and their efforts are now being acknowledged. Modeling on the runway is classified as a “dramatic performance” under UK law, according to Section 180(2)(a) of the Copyright, Designs and Patents Act, 1988. In France, models will be required to provide a medical certificate proving that they are fit to work, as well as a new rule prohibiting those who are excessively thin. Underage models with a BMI of less than 18.5 are prohibited from working in Italy, Spain, and Denmark. Models like Cara Delevingne and Kate Moss have spoken out about the sexual harassment and mental stress that teenage girls endure in the profession, and model health is becoming a hot topic of discussion in the industry. All we need to do now is maintain battling and have patience as the industry becomes more hospitable and healthy for both existing and new models.

Meaning & need of Intellectual Property Rights:

Intellectual property rights are a set of rights granted to a person for inventions based on his or her own ideas/intellect. These rights are granted for a set length of time and are divided into two types:

1) copyright & related rights

2) industrial property rights

For a minimum of 50 years, copyright and associated rights are generally granted to artistic works and authors, such as paintings, poems, films, and so on.

Industrial rights, on the other hand, are granted to certain types of trademarks or distinctive signs that claim to be unique.

In addition, some inventions, such as technological, design, and commercial secrets, are protected.

The cosmetics business comes within the latter category, i.e., industrial property, which includes trademarks, trade secrets, marketing licences, and copyrights for a certain brand.

When we tend to acquire these rights for our own brand, formulation, or ideas, it remains protected with us and we have complete rights over the product, it enables one to safeguard his or her brand, where nobody can replicate the concepts and “beauty secrets” of that brand, and it helps to develop in its uniqueness.

A cosmetic firm or brand must resort to industrial property rights and the many choices it gives, including as patent protection, utility model protection, and business secrecy protection, in order to safeguard the above-mentioned ideas/intellect.

• Patent Protection: These are the rights granted to the person who developed the particular thing that has to be patented; they are granted for a period of 20 years and then become public domain; no one may use that concept without the author’s permission.

To get a patent for an invention one needs to abide by three requirements i.e.,

• Novelty- the invention must be new
• Inventive- which means it can be used
• Industrial application

In the cosmetics field the description and the actual usability of the product should match and meet the creative requirements.

• Utility protection: It is granted for a term of ten years to innovations that do not have a higher position/rank, such as an ingredient that can improve the quality of currently available cosmetics.
• Protection through business secrecy: As the title implies, there are several processes required in the cosmetic business to produce the final product. Keeping a few trade secrets might help the brand expand in a unique fashion, as it will limit market competition owing to the lack of identical goods. Any information or knowledge, whether technological, scientific, industrial, commercial or otherwise, can be classified as a trade secret. Because it can last an indefinite amount of time. 

Coca-Cola is one of the greatest examples of how a business secret may work. Despite all the suspicions and rumors that have always surrounded the brand, the famous soft drink giant always maintained its formulation in a secret, and how it was created is unknown, at least not with certainty. This secrecy and suspicions played a major role in its advertisement and has made the brand stand out from the rest of its competitors. If Coca-Cola had decided to patent their soft drink formula at the time, this information would have been available to the public a few years ago, putting an end to its strong market positioning and competitiveness.

Problems faced by the cosmetic industry

Any work of art that has taken time, effort, and intelligence to create must be respected, and the creator must be acknowledged. Similarly, the signature makeup looks we see are all works of art that must be respected, and when they are duplicated without giving appropriate recognition to the artist’s uniqueness, it is considered plagiarism.

There are a plethora of goods on the market that produce the same benefits as branded cosmetic products and are far less expensive; as a consequence, people are increasingly turning to such products, since not everyone can afford to pay for such high-end brands.

Another issue that the cosmetics business faces is that identical goods are frequently released by various brands. Courts can protect a brand’s copyrights, patents, and trademarks, but they often fail to safeguard innovation, resulting in product duplication.

Patents can be applied to trademarks, brand names, and other items, but not to ingredient lists, resulting in competition.

Conclusion

In these digital times which are characterized by creativity and accessibility, our generation prefers to get the finest that money can buy. Every original product encounters duplicity, theft, and plagiarism in this highly competitive sector, and they must be recognized by the law as infringements of intellectual property in order to preserve the worth of people’s work because all of these things harm one’s originality. To counteract these issues, legal elements in this field should be expanded to include all such items.

Ultimately, trademarks and intellectual property are commercial and legal options. The consequences of owning or not holding intellectual property and how to mark or defend the image of your business are in your own hands.

]]> https://fashionlawjournal.com/cosmetics-ip-rights/feed/ 0 https://fashionlawjournal.com/how-instagram-helped-fashion-brands-in-sustaining-the-pandemic/ https://fashionlawjournal.com/how-instagram-helped-fashion-brands-in-sustaining-the-pandemic/#respond Mon, 14 Jun 2021 06:04:00 +0000 https://fashionlawjournal.com/?p=1786 The fashion industry is experiencing a long-awaited shift. Everyone is reconsidering how fashion is made, especially how it is consumed, from major luxury fashion businesses to smaller labels closer to home. The COVID-19 outbreak has radically affected our perception of the world. People buy and live differently, and think in differently in many ways. Consumers throughout the world now see through a fresh set of eyes on products and businesses.

And this is where Instagram comes in, the leading social media platform for sharing of ideas and trends didn’t brisk during the pandemic. Instagram remained a location where individuals could trade fashion trends from the comfort of their own homes.

In the promotion of a wide range of brands, social media influencers increasingly play a crucial role now. There’s a digital influencer for everything, whether it’s supporting a beauty product, a fancy handbag, or a new model SUV, and more businesses are jumping on the influencer marketing bandwagon as a way to strengthen their marketing and outreach initiatives.

SO, HOW DOES IT ACTUALLY WORK?

You’ve been there before, the first day of a new year of college in a brand-new shirt. A shirt that made you proud but was regarded by your mother as the only fit for a wanderer or sickly superstar. Regardless, you wore it, took a chance. And your mother’s disapproval and hatred vanished when you got that one head nod from a respected cool kid across the busy corridor. Confidence restored.

In this case, two persons you respected sent you a message. Your mother was the first, but she’s out of touch with Gen Z culture and would have lost that discussion.

Therefore, the cool kid’s head nod, of course, was all that counted. You would have skipped the next lecture to burn the shirt in the bathroom if it hadn’t been a nod, but rather mocking of your fashion choices. But you deserved the nod and you trusted it because your peer understood you at the time.

So, what makes the difference? The Power Of Influence.

Instagram models and influencers blazed the way during this pandemic, creating trends and raising awareness about what their followers consume, addressing every social issue that needed attention, and dismantling discriminatory societal conventions. Gen Z grabbed the globe by storm and redefined fashion; appearing nice was no longer the most crucial factor. Body positivity, gender neutrality, and acceptance of one’s own personal style transformed the fashion business; new leaders emerged, and the industry was forced to follow them in order to stay in the competition.

“Social Media Influencers, whether their audience is significant or small, impact the lives of everybody who watches their content. They do have a responsibility to ensure what they are publishing is not harmful or offensive.” This comment issued by the Bombay High Court Single Judge highlights the social media influencers’ effects and obligations.[1] The Consumer Protection Act, 2019 focuses on deceptive ads and celebrity endorsements, which also include social media influencers. Followers can sue an influencer for misleading advertising for up to INR 10 lakh if the influencer does not disclose that it is a sponsored promotion and knowingly lies about the product that it is good when it is not. Repeat offenders can be fined up to INR 50 lakh. This is the first regulation that stresses targeted advertising and market efforts through influencers, since the Ministry has often expressed concern that marketing by celebrities and influential individuals can have a detrimental impact on consumers. There have been cases where commercials have been deceptive while yet appealing to customers.

In addition to the above regulations, the Ministry of Consumer Affairs established the Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Advertisement Endorsement) in September 2020 to monitor all types of endorsements and endorsers, regardless of medium. With the rise of the influencer industry, many micro-influencers have been pushing for personal benefit and money while ignoring the interests of the purchasing public.

With the aim of gaining consumers’ approval of fair advertising practice, the Council of Advertising Standards of India (ASCI) has established a code of self-regulation. The Code comprises a set of rules and regulations to ensure honest advertising. The ASCI also develops disclosure directives for influencers of social media who support things online, according to sources. The advertising regulator develops guidelines based on best practices around the globe to enable online shoppers to reach educated judgments in order to safeguard the consumer’s interests.

AND HOW IS THE FASHION INDUSTRY DEALING WITH IT?

We’ve seen that the role of fashion these days is all about meaningful consumption, which includes learning and appreciating how well your products are created, who manufactured them, and how ethically they were manufactured. This will have a good impact on society and shed light on how much one truly needs to consume. Virtual fashion shows and digital look books are not new concepts, but luxury firms have long attempted to provide shoppers with a more immersive experience through runways and sets but during this time of economic slumps and job losses sensitivity, sustainability, and prices are all issues that must be addressed.

Sabyasachi Mukherjee, an ace couturier in India, is famed for revealing his bridal designs on Instagram. Anjul Bhandari noted for her beautiful chikankari, and Summer House, a Bangalore-based label have shied away from runway events too. This practice was implemented by Mumbai-based Payal Khandwala even before the epidemic. A quick scan through the brand’s Instagram page provides a comprehensive look at her handcrafted silk sarees.

Running an ad campaign with social media influencers might be a fantastic way to advertise your company. However, you must adhere to the regulations. To get ready for your influencer ad campaign, do understand when you’re advertising, make certain that all disclosures are clear, Ensure that the endorsements are genuine, make a policy for social media.[2]

The world is online and if your ‘gram game is strong, you will win the world.

IS INSTAGRAM REALLY HELPING?

Over the last few decades or so, fashion and representation have joined hands and tackled crisis: including brutality by police against people of color in the United States, which increased the power of the zoot suit as a subcultural signifier, outfitting an army of women in a breeched uniform, which challenged prevailing notions of femininity; and the attack on the Parisian haute couture industry by racist mindsets, which also threatened the entire industry’s survival.

Within this multi-billion-dollar global creativity market, COVID-19 has influenced the thinking, design, production, and presentation of mode instantaneously using Instagram. It has surely helped brands survive through the pandemic by reaching out to the consumers but has also changed the definition of fashion altogether.

[1]  Marico Limited v Abhijeet Bhansali (Notice of Motion No 1094 of 2019 in COMIP No. 596 of 2019)

[2] Instagram Terms of Use, Update 2020

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