This article explores the potential for extending performers’ rights to runway models in India, drawing on an international precedent and the specificities of the Indian legal context. While performers’ rights laws in many countries protect a wide array of creatives, including musicians and actors, India’s legal framework does not explicitly include runway models in this category. This omission leaves models susceptible to exploitation and limits their control over their performances and images.

The Case for Performers’ Rights

Performers’ rights in India are governed by the Copyright Act, 1957, which grants artists economic and moral rights over their performances. These rights include control over the recording, broadcasting, and reproduction of their performances, as well as protection against unauthorized alterations​. Extending these rights to runway models could ensure they receive fair remuneration and recognition for their contributions to fashion shows.

The Ashby Case and International Precedents

The Ashby case in the UK serves as a pivotal precedent. In this case, the European Court of Human Rights recognized fashion shows as copyrightable works, opening the door for runway models to be treated as performers under intellectual property law. The court acknowledged the creative effort involved in fashion shows, including choreography, lighting, and dramatic presentation, which parallels performances in other protected artistic domains​​.

The significance of the Ashby case lies in its broader implications for performers’ rights. By recognizing fashion shows as copyright works, the court effectively acknowledged that the models participating in these shows contribute significantly to the performance. This recognition is crucial as it sets a legal precedent that could be emulated in other jurisdictions, including India.

Challenges in the Indian Context

In India, the legal context currently does not explicitly recognize runway models as performers. The Designs Act, 2000, and the Copyright Act, 1957, provide protections for designs and performances, but they do not specifically cover the unique role played by runway models. Moreover, the bureaucratic hurdles and lack of awareness among smaller fashion houses further complicate the protection of models’ rights.

The Indian fashion industry faces several unique challenges that impact the protection of models’ rights. These include:

Lack of Awareness: Many designers and models are not fully aware of their rights under existing IP laws. This lack of awareness often leads to exploitation and inadequate protection of their creative contributions​.

Limited Enforcement: Even when rights are recognized, enforcing them can be challenging. The prevalence of counterfeit goods and unauthorized reproductions of fashion designs undermines the legal protections available to models and designers​.

Proposed Legal Reforms

To extend performers’ rights to runway models in India, several reforms could be implemented:

Amend the Copyright Act: Explicitly include runway models under the definition of performers. This would align with international treaties like the Rome Convention and the WIPO Performance and Phonogram Treaty, to which India is a signatory​.

Increase Awareness and Training: Conduct targeted campaigns and training programs to educate models and designers about their rights under IP law. This empowerment is crucial for the enforcement of these rights. Training programs could be conducted by industry associations, legal experts, and government bodies to ensure that all stakeholders are aware of their rights and how to protect them​.

Strengthen Enforcement Mechanisms: Implement stringent measures against infringement of models’ rights, including counterfeiting and unauthorized use of their performances in fashion shows. This could involve increasing penalties for infringement, enhancing monitoring and enforcement mechanisms, and providing models with the tools and support they need to defend their rights in court​.

The Role of Models’ Unions and Associations

An important step towards ensuring the protection of runway models is the formation and strengthening of models’ unions and associations. These organizations can play a crucial role in advocating for models’ rights, providing legal support, and negotiating fair contracts on behalf of their members. In the UK, the Equity union has been instrumental in advocating for better working conditions and rights for models​​.

In India, models’ unions can similarly work towards ensuring that models are not exploited and that their contributions are adequately recognized and compensated. Such organizations can also provide a platform for models to voice their concerns and seek redressal for grievances related to their professional engagements.

Global Influence and the Need for Alignment

As the Indian fashion industry gains global recognition, it becomes increasingly important to align local laws with international standards. The fashion industry operates on a global scale, with Indian designers and models participating in international fashion weeks and collaborations. Aligning Indian IP laws with international standards will ensure that Indian models and designers are adequately protected when they work abroad.

International alignment also helps attract foreign investment and collaborations, as investors and partners can be confident that their IP rights will be protected in India. This can lead to increased opportunities for Indian models and designers to showcase their work on a global stage and benefit from international exposure.

Conclusion

Recognizing runway models as performers under Indian intellectual property law is essential for ensuring their fair treatment and remuneration. International precedents, such as the case where models were granted performers’ rights in the UK, provide guidance on how policymakers can adapt similar principles to the Indian context. This would create a more inclusive and equitable environment for all stakeholders in the fashion industry. This move will not only protect the rights of models but also enhance the overall integrity and sustainability of the Indian fashion sector.

Implementing such reforms requires a concerted effort from policymakers, fashion designers, event organizers, model agencies, and legal professionals. By working together, they can create a legal framework that supports the growth of the fashion industry while protecting the rights and interests of those who contribute to its success.

This shift takes place within a legal framework, intricately composed of consumer protection statutes, e-commerce regulations, and industry best practices. Addressing issues such as product liability, disclosure requirements, and the delicate task of managing damaged or returned items presents an array of distinctive challenges within this multifaceted regulatory milieu. Let us now dive into the critical elements that sustain the thriving ecosystem of fashion rentals.

Rental Agreements:

The rise of fashion rentals has democratized high-end fashion, allowing everyone to play dress-up with designer labels. But beneath the borrowed glamour lies a crucial question: can you trust what you rent? Rental agreements, the unsung heroes of this ephemeral world, provide the foundation for transparency and build trust between providers and customers.

Rental agreements fulfil a dual role: they guarantee transparency while also serving as protective measures. These thoroughly crafted agreements establish expectations, prevent conflicts, and guide fair resolutions during disputes. In case of mishaps, they define liability parameters, protecting both providers and customers. Drafting these agreements requires legal finesse, addressing contract and intellectual property rights with precision. Ambiguities are eliminated, replaced with clear language covering dispute resolution, termination clauses, and punitive measures, all seamlessly integrated for a smooth process.

Liability and Damages:

For the fashion rental revolution to flourish, there must be a clear outlining of responsibilities regarding rented garments. This is where rental agreements assume paramount importance, explaining scenarios and attributing obligations to both providers and customers.

The concept of wear and tear, the natural consequence of an item’s journey through time, must be carefully defined. Agreements should articulate when standard wear is permissible—such as the gentle worn appearance on a denim jacket—and when compensation for substantial damage, like a tear in the fabric of an exquisite saree, becomes a necessity. Clarifying mutual responsibilities for cleaning and maintenance, including costs associated with dry cleaning or rudimentary stain removal, mitigates potential disputes and emphasizes the shared custodianship of borrowed garments.

A proactive approach entails the inclusion of insurance and liability coverage within the agreement, serving as a financial safeguard for both parties. This provision acts as a barrier against unforeseen mishaps, be it an inadvertent spill or an unaccounted loss. By explicitly addressing these aspects, trust between customers and providers is not only fortified but also bolsters the industry’s reputation and long-term viability.

Intellectual Property (IP) and Consumer Rights in Fashion Rentals:

A strict adherence of intellectual property rights (IPR) laws, with a particular emphasis on trade mark regulations, is of paramount importance. These laws are crafted to shield brand identities and trade marks, obliging fashion rental businesses to exhibit the utmost respect for the trade marks of fashion houses and designers when offering their garments for rent. 

Consider the “Chanel v. The RealReal” case, where Chanel, initiated legal proceedings in the United States against The RealReal, an online luxury consignment platform, alleging that The RealReal was selling counterfeit Chanel products and making false claims about the authenticity of Chanel products. This case demonstrates the imperative of strict adherence to trade mark laws, thorough verification of product authenticity, the acquisition of requisite permissions or licenses, and a strong commitment to refraining from the unauthorized use of trade marks or logos. Moreover, other facets of IPR laws, including those governing copyright and design, may exert influence over fashion items. 

Yet, the sphere of responsibility encompasses more than just IPR protection. An intimate understanding of and adherence to consumer rights are equally useful. Clearly laid-out return policies, transparent refund processes, and accessible mechanisms for dispute resolution, along with educating consumers about their rights and obligations, foster a relationship of trust and cooperation for a favourable consumer experience.

Building trust is the cornerstone of a successful fashion rental industry. By prioritizing legal clarity and ethical sourcing, Indian rental platforms can cultivate a loyal customer base and lay the groundwork for India’s thriving fashion rental industry.

By prioritizing legal acumen and embracing ethical norms, fashion rental enterprises can ensure the success and longevity of the industry, cultivating consumer trust and charting a responsible and enduring path for the fashion rental renaissance in India.

Copyright and Trademark Laws: The Foundation of Authentic Resale

Intellectual property rights, specifically copyright and trademark laws, serve as the foundation for the legal operation of the second-hand designer fashion market. Copyright law protects original designs while trademark law safeguards brand logos and names. In this sphere, it’s crucial to ensure that items sold are authentic and don’t infringe upon the designer’s intellectual property rights.

Selling a counterfeit dress that mirrors a famous designer’s work could lead to a lawsuit for copyright infringement. Similarly, using a designer’s logo without permission may result in a trademark infringement suit. Sellers, therefore, must conduct thorough due diligence to authenticate the items they sell and ensure they abide by the law.

Environmental and Social Benefits of Buying Vintage and Second-hand Designer Fashion: Redefining Consumerism

The purchase of pre-owned clothing, particularly from high-demand brands such as Chanel, Louis Vuitton, and Gucci, introduces a radical shift in consumer behavior that benefits both the environment and society. It aids in reducing the demand for new garments, thereby mitigating the environmental impact of the fashion industry.

In addition, second-hand designer fashion provides a more affordable pathway to high-end fashion, promoting social inclusivity.

Challenges of Buying Vintage and Second-hand Designer Fashion: An Uphill Battle

The second-hand designer fashion market has its own challenges. We can broadly categorize the challenges into four groups:

Challenge 1: Assessing the Condition and Quality of the Product

Tip: One should carefully and thoroughly examine the item. Pay close attention to delicate areas and inspect the garments or accessories for signs of compromised quality, especially enclosures, zip, padlocks, pockets etc.

Challenge 2: Identifying and Avoiding Counterfeit Products

Tip: It’s important to research the brand’s authentication guidelines and study the specific features, logos, patterns, and materials commonly used in authentic items. Purchase from well-established vintage stores, consignment shops, or online platforms that have robust authentication processes and positive reviews. Avoid buying from suspicious or unknown sellers. Look for any inconsistencies in craftsmanship, materials, or packaging.

Challenge 3: Hygiene Concerns

Tip: Upon receiving the item, consider washing or dry-cleaning it according to the manufacturer’s instructions as mentioned on the product. If no such instructions are mentioned, one can seek professional cleaning services to ensure hygiene.

Challenge 4: Warranties and Returns

Tip: Before buying, review the seller’s policies regarding warranties, returns, and exchanges. Don’t hesitate to clarify any doubts or concerns you may have.

Ask About Guarantees: Inquire about any guarantees offered by the seller regarding the authenticity and condition of the item.

Enforcement of Copyright and Trademark Laws in Practice: A Balancing Act

The fashion industry has seen its fair share of legal disputes related to copyright and trademark infringements in the resale market. Notably, in 2019, Chanel sued The RealReal for selling counterfeit Chanel bags. The company later settled the lawsuit and agreed to discontinue selling counterfeit Chanel products. This case highlights the rigorous enforcement of intellectual property rights and the importance of maintaining authenticity in the second-hand market.

The Chanel vs. The RealReal case revolved around counterfeit Chanel items being sold on the online reseller’s platform. The dispute highlighted the responsibility of online resale platforms to ensure authenticity and the potential damage to luxury brands’ reputation from counterfeits. Although no legal precedent was set, the settlement had industry-wide implications. It involved The RealReal pledging to enhance its authentication processes and collaborating with Chanel to combat counterfeiting. This case prompted a shift in the industry, leading online platforms to invest more in authentication procedures and luxury brands to actively collaborate with these platforms to safeguard their intellectual property rights. It demonstrated the necessity to balance intellectual property enforcement while  maintaining consumer trust in the second-hand luxury market.

Innovation and Adaptation in the Second-hand Fashion Industry: Shaping the Future of Fashion

Companies like Thredup and Poshmark have revolutionized the sector, providing an easy and convenient platform for people to buy and sell pre-owned designer fashion. Thredup, with over 10 million members, has raised over $100 million in funding, demonstrating the viability of this business model. Poshmark, with its 60 million users, has facilitated over $10 billion in sales, again validating the strong demand for second-hand designer fashion.

Both Thredup and Poshmark have thrived by providing seamless customer experiences and by spreading awareness of the environmental and social advantages of buying vintage and second-hand clothing.

Future Trends for the Resale Market for Vintage and Second-hand Designer Fashion: Moving Towards a Sustainable Future

As the demand for sustainable and ethical fashion continues to grow, the vintage and second-hand designer fashion market is expected to flourish. Developments in technology may help address current challenges, such as verifying the authenticity of items by using blockchain technology.

Embracing the Second-hand Designer Fashion Market: Final Thoughts

The second-hand designer fashion market presents a fascinating blend of opportunities, challenges, and responsibilities. While navigating the complex legalities of copyright and trademark laws is essential, so is the capacity to adapt and innovate in the face of challenges. The potential economic, environmental, and social benefits make this sector an exciting frontier in fashion.

As the use of these virtual stand-ins continues to rise, the concerns about liability for the content and violation thereof are also on a surge. Although the long-term viability of virtual influencers remains unclear, there is consensus on the need for greater clarification regarding many problems, such as intellectual property rights and other applicable laws like advertising regulations.

Collaboration with a virtual influencer may seem enticing at first, but it requires a great deal of prudence on the part of the company which intends to collaborate with a virtual influencer and the part of the entity or individual that is running the virtual influencer. On the one hand, due to the fact that these influencers are essentially ideas packaged as a product, it is imperative that any business interested in collaborating with a virtual influencer conducts extensive research before signing any contracts. On the other hand, the owner of the virtual person should have the legal right to protect and enforce its intellectual property in whatever work it creates.

Various governments are beginning to evaluate the necessity for reforms to their legislation to maintain accountability and defend the interests of the public as virtual influencers have become more popular and prominent. Some of these adjustments have already been made by a few governments. One example of this is the Federal Trade Commission (FTC) in the United States, which is contemplating updating its guidelines on endorsements to include virtual influencers. The Advertising Standards Council of India (ASCI) has included virtual influencers in their standards for “Influencer advertising on digital media,” making it very apparent that consumers must be informed upfront that they are not communicating with a real person.

Since virtual influencers have a considerable effect on consumer behaviour, there is a growing movement to hold them more accountable for their actions in order to safeguard the public from harm or manipulation. It is conceivable that more governments will explore taking similar steps to ensure the responsibility of virtual influencers and defend the interests of the public. 

For instance, if a virtual influencer is featured in an advertisement for a cosmetic product and the public at large is not alerted of the same, it could lead to a few potential yet serious consequences. If the product advertised in question has a drastically different effect on human skin, and relevant authorities get involved, the same may have lethal consequences for both the brand and the virtual influencer (ultimately the entity/individual behind it), such as the advertisement being taken down and damages to be paid to the aggrieved. The essentials of an ethical advertisement are that an advertisement must be truthful, cannot be deceptive or unfair, and must be evidence-based should all the time be adhered to minimize any foreseeable dispute.

Many have also wondered who would be held liable in the event that a virtual influencer violated the law or infringed the rights of a third party. The problem is addressed in the broad philosophical and legal literature on the subject of civil responsibility for Artificial Intelligence (AI). Instead of giving AI systems their own legal personality and making them legally liable, there is a growing movement to hold the person or legal entity responsible for who plays or has played a significant part in the AI system’s development, management, or upkeep.

Therefore, the front-end operator, who is responsible for operating and controlling the risks associated with the AI system, and the back-end operator, who is responsible for defining the features of the technology and providing necessary data and support, are both liable for the actions of the AI system. Whether or not separate operators are identifiable and accountable for different reasons has no influence on joint liability to third parties; each operator’s entitlement to seek remedy from the other should be based on the actual level of control they exerted.

To put it simply, the businesses that create or program virtual influencers, the marketing agencies that utilize them, and the organizations that oversee their operations bear ultimate responsibility for their actions. As such, in cases of criminal behaviour, the main challenge will be determining the extent of accountability for all the operators involved in creating, managing, and safeguarding digital identity at different levels. 

There is a significant level of interest among many people globally in virtual influencers, which are created by AI algorithms. As virtual influencers are a relatively new phenomenon, it is important for those who create them and the businesses that work with them to safeguard their intellectual property and adhere to relevant laws. The question of whether these new types of influencers should be held legally responsible for their advertising and promotional efforts is still up for debate. While it is difficult to predict the future development of legislation on AI and responsibility, it is necessary to address these issues early on through legislative intervention.

Disclaimer: Views expressed are of Author.

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