Big-name fashion figures, Hollywood stars, tech company executives, and deep-pocketed patrons of the arts are expected to flood the temporarily red-carpeted steps of the Metropolitan Museum of Art in Manhattan on Monday evening, a COVID-caused alternative of the usual first Monday in May schedule, in American-designed wares to celebrate what has been popularly-coined “fashion’s biggest night of the year.” The high fashion-saturated red carpet of the museum’s annual Costume Institute Gala – which has garnered mainstream media attention in recent years – remains one of the most attention-grabbing in the industry, which is why many brands shell out more than $200,000 for tables at the event and then splash corresponding imagery of their guests on their Instagram accounts.

The annual red carpet for the Met Gala is inevitably smattered with high-profile attendees and high-fashion wares. This year, that will see many a celebrity and/or fashion figure in the creations of American designers, a nod to the “In America: A Lexicon of Fashion” theme. (Tom Ford, who is a co-sponsored of the evening, will likely be a popular choice.) More than that, it will be graced by famous figures clad in garments created (and lent) by the brand sponsoring their individual attendance – the evening is a major marketing opportunity for brands, after all.

This year, the exhibition, itself – which is slated to open to the public on September 18 will run until May 5, 2022 when Part II, “In America: An Anthology of Fashion,” opens.

Look beyond the evening’s red carpet and the corresponding museum exhibition, and you will see that the evening is big business. The money raised by way of the gala – some $13.5 million as of 2017 – is enough to fund the Costume Institute’s annual operating budget in its entirety, and so, it is in the interest of the organizers to keep the appeal of the event, which got its start in 1948 when fashion publicist Eleanor Lambert decided to host a fundraising dinner to support the then-newly-founded Costume Institute ahead of the opening of its annual exhibit, intact.

In its early days, a Met Gala ticket cost $50 and attendees consisted almost exclusively of Manhattan’s charity event-going circle, and figures from the fashion industry. Under the watch of former Vogue editor-in-chief Diana Vreeland, who was tasked to consult for the Costume Institute in 1972, the celebrity-centric nature of the event as we know it today began to take shape.

Attendance for the star-studded event is notoriously much trickier than it was at the outset. As the long-standing industry urban legend goes, even if an individual has the $35,000 it currently takes to purchase a single ticket, or a brand is willing to splash out between $200,000 or $300,000 for a table, getting on the guest list is not necessarily as simple as buying tickets. Vogue editor-in-chief and Conde artistic honcho, Ms. Wintour, is said to personally review – and approve or ban – every name on the traditionally 650-or-so-person list. Vogue’s traffic-meal-ticket du jour Kim Kardashian was reportedly banned in years prior, as have various cast members of the “Real Housewives” franchises. According to the New York Times’ Vanessa Friedman, “Rumors have gone around for years that Ms. Wintour turns away guests she does not know or who she feels do not fit the image she wants her event to project.”

The exclusivity surrounding the list of invitees, as furthered by the mystique of the prerequisite stamp of approval from Wintour, almost certainly helps to boost the appeal of the entire event (one that Gwyneth Paltrow once called “un-fun” and “sucked.” The Goop guru has seemingly walked back on that after attending in subsequent years.) This very model of strict control in light of demand has helped put Hermes and its famed $12,000-plus Birkin bags on the “it” list for more than 30 years. It helped streetwear stalwart Supreme to command a $2.1 billion valuation when it was acquired by VF Corp. last year, and landed Off-White under the umbrella of LVMH, the largest luxury goods conglomerate in the world. In an industry as fickle and image-driven as fashion, few things motivate quite like a list or a cool kids club.

The fashion industry’s penchant for maintaining the status quo also lends a helping hand. As journalist Amy Odell wrote not too long ago about why brands continue to pay for print ads when magazine readership continues to plummet, “Tradition remains powerful in an industry built on constant change that, paradoxically, is full of entrenched interests and doesn’t really like to change very much.” That same reasoning applies here, as well.

More than 70 years after the Gala first got its start, Vogue has readily proclaimed that “on the fashion calendar, few dates are as important,” something WWD called into question in the not too distant past. In an article published ahead of 2019’s Gucci-sponsored “Camp” exhibition and corresponding gala, for instance, the trade publication suggested that “some big designers [were] skipping the Met Gala this year,” and noted that in the digital era, big brands – such as Ralph Lauren, Dior and Calvin Klein, which reportedly opted not to purchase tables – no longer need events like this to garner publicity; with an influencer and an Instagram account, they can do it themselves.

“The fashion-media matrix has certainly been irrevocably altered in recent years,” the trade noted. “If [a] brand wants to get an image of an actor or a ‘brand ambassador’ in one of its looks out into the world, it doesn’t need to spend well upward of $300,000 for a red-carpet event to do it when an Instagram post by it or an influencer can do the trick.”

At a time when brands are able to drum up much-needed PR on their own without a $300,000 table, can an event, such as the Met Gala, hold its weight? If 2019’s event was any indication, apparently it can. According to a rep for publishing giant and Vogue parent company Conde Nast, which helps sponsor the exhibition, and whose artistic director Wintour spearheads the gala, tickets were sold out, and have been for months. And in fact, it revealed that brands that have never paid for tables before, such as Louis Vuitton, were shelling out.

A handful of pieces from designer Philipp Plein’s rock-n-roll-inspired Spring/Summer 2020 collection – which included skull-adorned face masks, heavily studded and/or spiked leather jackets and over-the-knee boots, and “KISS” embroidered mini dresses thanks to a collaboration with the band – are at the center of a new copyright lawsuit. In the complaint that it filed against a number of Philipp Plein’s corporate entities in a New York Federal Court on Friday, Resurrect By Night (“RBN”) claims that Philipp Plein allegedly took its artwork and slapped it on $945 t-shirts, $6,915 leather jackets, and $820 jeans, among other S/S20 garments, and began selling them under the Philipp Plein brand name despite having never been authorized to do so. 

According to its June 4 complaint, RBN alleges that it has built its brand by way of “aggressive [and] authentic clothes [that] display a distinct artistic sensibility which it has carefully and painstakingly developed over the years.” The plaintiff claims that its founder, artist Daren Chambers sources vintage garments, and “re-purposes and hand paints every unique piece, inspired by music, art and culture,” and in the process, RBN has become known for its “use of an unusual mix [of] media and techniques to create two and three-dimensional pieces” that have been stocked by Barneys, worn by basketball superstar Russell Westbrook, and featured by outlets, such as GQ. 

“As a result of [its] efforts, the quality of its products, its promotions, extensive press and media coverage and word-of-mouth buzz,” RBN contends that its “clothing has become prominently placed in the minds of the public.” And in what appears to be a veering into trademark territory, despite this being an exclusively copyright-centric case, counsel for RBN asserts that “members of the public have become familiar with [RBN’s] products and have come to recognize them and associate them exclusively with [RBN],” which “has acquired a valuable reputation and goodwill among the public as a result of such associations.” 

Thanks to the appeal of its “innovative clothing,” RBN claims that it and “its designs have become targets for unscrupulous individuals and entities that wish to exploit the goodwill, reputation and fame that [it has] amassed in its products.” One such copycat, according to the complaint? Philipp Plein, which took “artwork that is substantially similar to [RBN’s] designs,” and “manufactured, imported, exported, advertised, distributed, offered for sale or sold [those] designs” by way of its own 100-plus stores and its e-commerce site, as well as via Alibaba’s sweeping TMall platform, where Plein began selling its products in December 2020. 

RBN’s designs (left) & Philipp Plein’s designs (right)

In doing so, RBN claims that Plein has taken its “unique artistic style and approach and misappropriated it for [Plein’s] own use,” and run afoul of U.S. copyright law. 

Specifically, RBN points to two designs that Plein allegedly misappropriated: “The first design features a muscular, skull-faced character raising clenched fists,” and the second “features a blonde, skull-faced character in a short dress, above flames.” Despite knowing that RBN “never authorized [it] to appropriate, reproduce, display or distribute the [allegedly infringing] designs, let alone to adapt the designs in order to create shirts and other derivative works based on [RBN’s] designs,” RBN claims that Plein engaged in the “unauthorized and unlawful” use of these two designs by reproducing them “on apparel under the ‘Philipp Plein’ name,” and displaying, distrusting, and selling them. 

Upon learning of Plein’s use of the artwork, RBN claims that it “contacted all three [of the] defendants in September 2020 and requested that [they] cease and desist, inter alia, producing, distributing, marketing and selling the infringing products,” but the defendants “have not complied and therefore, their conduct is willful.” With the forgoing in mind and given that the defendants’ conduct has “damaged [its] ability to sell or license the designs while, at the same time, enabling the defendants to profit from the unauthorized reproduction, adaptation, display, sale and distribution of the designs,” RBN sets forth copyright infringement claims, and is seeking monetary damages and injunctive relief. 

A rep for Philipp Plein did not immediately respond to a request for comment.

The case is Resurrect the Night LLC v. Philipp Plein Americas, Inc., et al., 1:21-cv-04948 (SDNY). 

A California federal judge granted North Face and its owner VF Corp’s April 26 motion to dismiss the trademark infringement complaint that Leonard McGurr – aka Futura – filed against them early this year, alleging that North Face “inexplicably began using a copy of” his famous “atom” design as the logo for a new line of apparel and fabric technology in 2019 “without [his] consent.”  McGurr – who filed suit with the U.S. District Court for the Central District of California in January – claimed that he “has become known for a signature element that appears over and over in his work: a particular stylized depiction of an atom,” which he has used repeatedly over the past fifty years “as a traditional logo, to identify himself as the source of consumer products he offers, including apparel.” 

In response to the suit, VF and co. took issue with the validity of McGurr’s atom mark, claiming that the “spherical atomic symbol” is not a valid trademark because “(1) it is aesthetically functional; (2) it is merely ornamental based on its size, location, and dominance on the goods on which it is placed; (3) it does not identify a ‘secondary source;’ and (4) it is purely artwork,” and thus, “does not function as a source identifier,” which is the primary function of a trademark. Beyond that, the defendants argued that this spring that the McGurr’s case should be tossed out of court because the artist “does not use his design in a consistent fashion,” and instead, the atom symbol is “not a singular design but the representation of a concept with a limitless number of iterations.” 

As Judge Stanley Blumenfeld set out in his June 1 decision, McGurr states in his complaint that he “was an early adopter of a ‘fluid trademark’ – i.e. one with different iterations that feature enough of a family resemblance that the target audience can recognize it in all its variation.” The problem with this, according to the court, is that McGurr “cites no legal authority endorsing a theory of fluid trademarks,” and at the same time, “this Court [is not] independently aware of any judicial or USPTO finding of trademark protection based on a collection of similar but different designs.” 

McGurr’s “atom” design (left) & North Face’s design (right)

While McGurr is correct in his assertion that “there are no formal limitations on what can function as a trademark,” with Judge Blumenfeld noting that “things such as colors, flavors, and fragrances can be trademarks if they are non-functional and serve as a source identifier,” he states that McGurr, nonetheless, “cannot seek refuge in this broad principle” in order to protect a “style.” 

According to the court, McGurr “does not purport to have a single distinctive identifier that serves as his trademark,” and instead, he asserts “trademark protection to control the commercial use of a spherical atomic symbol,” an assertion that Judge Blumenfeld says “is extraordinary in its seemingly boundless application – boundless because the purportedly protected symbol need not be accompanied by any word, name, product, or any other source identifier to run afoul of the alleged trademark, and boundless because the design of the spherical atomic symbol is ‘fluid.’” 

Pushing back against McGurr’s attempt to rely on trademark protection in connection with the “spherical atomic symbol,” Judge Blumenfeld held that “[b]asic geometric shapes, basic letters, and single colors are not protectable as inherently distinctive.” Citing a “useful point of contrast,” the judge notes the Louis Vuitton Malletier v. Dooney & Burke, Inc. case, in which the U.S. Court of Appeals for the Second Circuit found that Louis Vuitton had a trademark in the “Multicolore” pattern that introduced in 2002 in collaboration with artist Takashi Murakami, which was a colorful play on “the brand’s famous [brown and gold] Toile Monogram, featuring entwined LV initials with three motifs: a curved diamond with a four-point star inset, its negative, and a circle with a four-leafed flower inset.” 

In its 2006 decision, the Second Circuit concluded that “Louis Vuitton’s Multicolore mark, consisting of styled shapes and letters – the traditional Toile mark combined with the 33 Murakami colors – is original in the handbag market and inherently distinctive.” 

Ultimately, McGurr’s “novel theory of fluid trademarks, if permitted as proposed here, would give new meaning to federal trademark law with far-reaching consequences,” according to Judge Blumenfeld, who granted the defendants’ motion to dismiss, but also gave McGurr the opportunity to amend his pleading “to specify a distinctive mark, composed of a symbol next to his commercially famous name.” Counsel for McGur has until June 14 to file an amended complaint. 

The case is Leonard McGurr v. The North Face Apparel, V.F. Corp., et al., 2:21-cv-00269 (C.D. Cal.)

On the heels of Gucci’s Executive VP of Brand and Customer Engagement Robert Triefus revealing that it is “only a matter of time” before luxury brands get in on the non-fungible token – or “NFT” – game, the Italian design house is offering up its first NFT as part of a newly-unveiled auction at Christie’s. Entitled, “PROOF OF SOVEREIGNTY: A Curated NFT Sale by Lady PheOnix,” the NFT-specific auction, which runs from May 25 to June 3, contains a single work from Gucci: a fashion film co-directed by creative director Alessandro Michele and award-winning photographer and director Floria Sigismondi.

Following from – and inspired by – the Milan-based brand’s recent Aria collection and the corresponding collection film, which was also created by Michele and Sigismondi, the new NFT work, “with its dream-like landscape and effervescent energy, marks a historic moment for the storied brand, as it bridges into a new media space,” according to the Christie’s listing, as first reported by Vogue Business. Christie’s further describes Gucci’s new offering as “speaking to Aria’s overarching message – that of a universal desire for renewal; a yearning to bloom and flourish after the shadow of winter has passed. Doors open as darkness yields to light and that long-awaited feast of air.” 

All of the proceeds of Gucci’s “Aria” NFT – bidding for which starts at $20,000 and which is being offered up alongside works from artists like KESH, Claudia Hart, Tamiko Thiel, Raf Grassetti, and Jeron Braxton, among others – will be donated to UNICEF USA to “support UNICEF’s role in COVAX, an initiative aimed at ensuring global equitable access to COVID-19 vaccines.” 

THE BROAD VIEW: Gucci’s new NFT comes as luxury brands are embracing various tech opportunities, whether that be collaborations with digital gaming platforms, such as Roblox, or more recently, early steps by companies like jewelry-maker Jacob & Co. and LVMH-owned luggage brand Rimowa into the realm of non-fungible tokens. As for what is driving brands to experiment with NFTs (which are distinct from non-blockchain-linked virtual fashion items), it is not all that different from what pushes them to participate in other, more tangible art-centric projects: it is an chance to engage with luxury-seeking consumers in a different way than traditional advertising and marketing efforts.

More than that, though, these art-focused endeavors enable brands to build equity. “Luxury fashion brands know that they need a point – or better yet, multiple points – of differentiation” if they want to maintain their images of exclusivity and charge higher prices for their products, according to Alessia Grassi, a lecturer in marketing at the University of Huddersfield, who notes that studies “have suggested that an association with art allows commercial brands to be perceived as more luxurious.”

With that in mind, Grassi asserts that luxury brands have been “moving directly in the art field, as demonstrated by the stream of art-centric collaborations that appear on runways each season and/or in brands’ flagships across the globe,” as well as their establishment of art-centric foundations and museums, and their contributions to cultural endeavors. By way of foundations, as well as commission and residence programs, brands like Salvatore FerragamoTrussardiHermes, and Ermenegildo Zegna, among others, “are readily investing in art, and collecting valuable contemporary (sometimes modern) pieces.” The likes of Prada and Louis Vuitton have gone a step further with their respective Fondazione Prada in Milan and Fondation Louis Vuitton in Paris, “which may carry the names of fashion houses, but they are fully-fledged art galleries open to the public.”

While the future of NFTs is very much up in the air, it is no secret that the crypto market, as a whole, has been especially volatile as of late, and NFT “values in dollars will have fallen sharply,” in some cases, by more than 50 percent from April,” per Business Insider, prompting questions about whether the bubble has burst. “The NFT market boomed earlier this year, reaching a high of almost 49,000 sales a day in early March, as celebrities, artists and musicians tapped into the mania for digital work,” BI reported early this month. “Almost all NFT sectors saw a decline in terms of sales and dollars spent throughout April, although overall sales volume in dollars spiked again in early May, averaging over $176 million during the first week of the month.” 

Regardless of the potentially fleeting nature of NFT-tied art, one area where blockchain technology (and in some cases, NFT digital passports) may be taking a more permanent hold is in the tracing of luxury goods. In April, luxury goods titan LVMH revealed that it was preparing to start offering up Aura – a blockchain-hosted platform that it says will “serve the entire luxury industry with powerful product tracking and tracing services, based on Ethereum blockchain technology and utilizing Microsoft’s [cloud computing service]” – in an industry-wide capacity. In making such an announcement, LVMH revealed that Swiss conglomerate Richemont and Prada Group will join what it is calling the Aura Blockchain Consortium. 

The use of an industry-wide blockchain that securely holds information about luxury goods would “increase customer trust in the brands’ sustainable practices and product sourcing,” LVMH, Richemont, and Prada claimed in a joint statement last month.  

Where does the underlying value of non-fungible tokens – or “NFTs” – come from? That is an increasingly common question, as the value of NFTs continue to grow. The issue is a tricky one, as that perceptions of what the buyer is paying for are not easily framed in legal terms. NFT marketplaces do not always accurately describe the value proposition of the goods they are selling. The truth is that the value of any NFT is largely speculative. Its value is determined by what someone else is willing to pay for it and nothing else. Turning something as ephemeral as a tweet into an item that can be sold requires two things: making it unique and proving ownership. The process is the same for cryptocurrencies, which turn strings of bits into virtual coins that have real-world value. It boils down to cryptography.

Cryptography is the technique used to protect privacy of a message by transforming it into a form that can be understood only by the intended recipients. Everyone else will see it as only an unintelligible sequence of random characters. This message manipulation is enabled by a pair of keys – public and private keys, which work like this: You share your public key with your friend, who uses it to transform his message to you into an unintelligible sequence of random characters. You then use your private key to put it back into its original form. The special mathematical properties of these two crypto keys are widely used to provide secrecy and integrity, and they play the role of digital signatures and are commonly used in blockchain to enable both authentication and anonymity for transactions.

Blockchain is a crucial technology for creating NFTs. It uses cryptography to chain blocks into a growing list of records. Each block is locked by a cryptographic hash, or string of characters that uniquely identifies a set of data, to the previous block. The transaction records of a chain of blocks are stored in a data structure called a Merkle tree. This allows for fast retrieval of past records. To be a party in blockchain-based transactions, each user needs to create a pair of keys: a public key and a private key. This design makes it very difficult to alter transaction data stored in blockchain. 

Although blockchain was initially devised to support fungible assets like Bitcoin and other cryptocurrencies, it has evolved to enable users to create a special kind of crypto asset, one that is nonfungible, meaning provably unique. Ethereum blockchain is the basis for most of the currently offered NFTs because it supports the ERC-721 token standard, enabling NFT creators to capture information of relevance to their digital artifacts and store it as tokens on the blockchain.

When you pay for an NFT, what you get is the right to transfer the token to your digital wallet. The token proves that your copy of a digital file is the original, like owning an original painting. And just as masterpiece paintings can be copied and distributed as inexpensive posters, anyone can have a digital copy of your NFT. Your private crypto key is proof of ownership of the original. The content creator’s public crypto key serves as a certificate of authenticity for that particular digital artifact, and together, the pairing of the creator’s public key and the owner’s private key is what determines some of the value of any NFT token. (From a non-technical perspective, a notable amount of the value of NFTs comes from the element of rarity at play, as well as the sheer hype associated with the budding asset class.)

The very short history of NFTs

NFTs came to prominence in 2017 with a game called CryptoKitties, which enables players to buy and “breed” limited-edition virtual cats. From there, game developers adopted NFTs in a big way to allow gamers to win in-game items such as digital shields, swords or similar prizes, and other game collectibles. Tokenization of game assets is a real game-changer, since it enables transferring tokens between different games or to another player via NFT specialized blockchain marketplaces. 

Besides gaming, NFTs are frequently used to sell a wide range of virtual collectibles, including NBA virtual trading cards, music, digital images, video clips and even virtual real estate in Decentraland, a virtual world. NonFungible.com, a website that tracks NFT projects and marketplaces, puts the total NFT market value at $250 million, a negligible fraction of the total crypto coin market but still highly attractive to content creators. The contract behind the token, based on the ERC-721 standard for creating NFTs, can be set to let content creators continue to earn a percentage from all subsequent sales. 

The NFT market is likely to grow further because any piece of digital information can easily be “minted” into an NFT, a highly efficient way of managing and securing digital assets.

Blockchain’s carbon footprint

For all the excitement, there are also concerns that NFTs are not eco-friendly because they are built on the same blockchain technology used by some energy-hungry cryptocurrencies. For example, each NFT transaction on the Ethereum network consumes the equivalent of daily energy used by two American households. Security for most of today’s blockchain networks is based on special computers called “miners” competing to solve complex math puzzles. This is the proof-of-work principle, which keeps people from gaming the system and provides the incentive for building and maintaining it. The miner who solves the math problem first gets awarded with a prize paid in virtual coins. The mining requires a lot of computational power, which drives electricity consumption.

Ethereum blockchain technology is evolving and moving toward a less computationally intensive design. There are also emerging blockchain technologies like Cardano, which was designed from the outset to have a small carbon footprint and has recently launched its own fast-growing NFT platform called Cardano Kidz. The speed of transformation of blockchain technology into a newer, more eco-friendly variant might well decide the future of the NFT market in the short term. Some artists who feel strongly about global warming trends are opposed to NFTs because of perceived ecological impact.

The coming crypto-economy

Whether or not the current NFT craze can keep its momentum going, NFTs have already accelerated a larger trend of digital economic innovation. NFTs have confirmed that the public is feeling increasingly favorable toward a crypto-economy and is embracing short-term risks in return for creating new business possibilities.

NFTs have already made significant inroads into the luxury and gaming industries, and have plenty of room to grow beyond these initial applications. The art sector will continue to be an important segment of the overall NFT market and is likely to gradually reach maturity over the next couple of years, although it is likely to be surpassed by other digital certificate applications like trademarks and patents, training and upskilling certificates.

Dragan Boscovic is a Research Professor of Computing, Informatics and Decision Systems Engineering at Arizona State University. (This article was initially published by The Conversation)