THE STRANGE RELATIONSHIP BETWEEN FASHION & IMITATION: A COMMENTARY ON FASHION AND INTELLECTUAL PROPERTY
There is an English saying, “Imitation is the best form of flattery.” When I think about this saying I find myself contemplating on the state of African and Kenyan Fashion and the strides we are making in the intellectual property aspect of the fashion business. This sounds like a mouthful, doesn’t it? Well, let me break make an attempt at a simple analysis from my observation as a intellectual property lawyer and a lover of all things fashion.
When we talk about creative industries one of such industries is fashion design. The fashion business is a brain child of intellectual property; designer dreams of a garment, puts a design together, constructs the garment and voila! a finished commercializable fashion product. However, because of the nature of fashion there have been debates on the level of intellectual property claims a designer can make in fashion. I mean, after all, a skirt will always remain a skirt and so will the rest , dresses, shirts, blouses,pants and so on and so forth even when the names vary like trousers and pants etc.
So, the question then is or should be… To what extent can one protect their intellectual property in the fashion business?This is a question worth thinking about. But first, let us analyze a recent major fashion blooper that just happened last night in the African entertainment industry. Did you see the stunt our dear Nigerian Actress Ini Edo pulled on the Africa Magic Viewers Choice 2015 red carpet? My first instinct was to just put my palm on my face. How could she? I know that imitation is the best form of flattery but in this case it went all wrong in my opinion.
Firstly, Ini Edo is a talented brand in her own right in African and Nollywood. So, why would she want to look like Lupita Nyong’o? Why would she proceed to make a knockoff of the famous red cape Ralph Laueren dress from last years Golden Globe Awards? Did she think of how such a stunt puts her brand in question? What was she trying to achieve? Did she not see that this act in itself is an infringement of Ralph Lauren’s intellectual property? I hope the designer or tailor of the imitation is ashamed of themselves as well.
In my view, this act shows a total disrespect and disregard of intellectual property in fashion and to make matters worse, by a renowned African actress. If we want the rest of the world to respect our intellectual property rights, we must start by respecting our fellow African’s rights as well as those of international players. This starts with those in positions of public influence such as Ini Edo. Can you imagine what repercussions one opens themselves up if they were a personality in Hollywood and were to proceed with such a stunt of copyright infringement? I am sure one of the possible legal repercussions would be a law suit. I know if I was a fashion designer, I would defend and assert my intellectual property rights.
Moving away from Hollywood and Nollywood. The issue of imitation is one that even Kenyan fashion designers face and as a result stifles the growth of fashion businesses. Perhaps our designers are not asserting their intellectual property rights in fashion as much as they should. For a solid successful business in fashion, designers need to embrace protection of their rights through copyright and trademarks. Something we are slowly realizing. But why must we wait for an infringement to come our way to realize the protection of IP in fashion?
In my view, this will only change if it starts with the designer. Is someone using a picture of your design on social media to market it as theirs? Have you done something about it? If not, why? If yes, was it enough to invoke the fear of a legal suit?
I am aware of the existence of a Fashion Designers Association in Kenya. But what is their mandate? What is their role in protecting the business of fashion? This commentary has more questions than answers. May be because I am not a fashion designer. However, they are crucial thinking points to take fashion in Kenya to the next level.
What is your view?