With the world's first Metaverse Fashion Week starting today the subject of first publication of fashion and NFT designs in a completely virtual environment raises some important unanswered questions about how designers can protect their works.
As we discussed in the context of hybrid streamed and in person fashion shows around Fashion Month 2021, there is some uncertainty over the availability of EU and UK unregistered design rights to designers because of the requirement of first "publication" of the designs to attract protection in the UK and EU. These rights can be valuable in the fashion sector in particular because, unlike registered designs, there is no requirement to incur the burden and cost of registration since the unregistered rights subsist automatically; as fashion designs can change quickly and be highly seasonal, registration of fashion designs can sometimes be seen as impractical.
In particular if designs are first showcased in a virtual online environment it is unclear whether this constitutes "first" publication in the UK or EU. If so then designers may benefit from unregistered design rights in either country – or possibly both, though this is also unclear! If not then designers may have to rely on other forms of protection only. Amazingly this point remains unclarified by the courts.
On the positive side for designers, recent leading EU and UK court decisions appear to have expanded the availability of copyright protection as a possible form of protection for such designs. However, while this provides designers with a degree of reassurance, certain types of work may not attract copyright protection, and the scope of protection available under copyright can often be unclear, leading to potential difficulties in enforcement.
In view of all this it will be interesting to see if lawmakers decide to take action to clarify this position or if designers seek to obtain more certainty through conducting litigation themselves after events like the Metaverse Fashion Week.
For the time being, there are clear benefits in securing registered design protection for such designs where practical to remove uncertainty, especially in a virtual marketplace where NFT designs are often traded for significant monetary value.
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