Partnership contracts of fashion with film, television and cultural industries: new protections needed

The film, television and cultural industries have always been fertile ground for fashion, which in recent years has implemented and strengthened forms of partnership that require new arrangements in contracts to be addressed.

The mechanisms that made Givenchy’s little black dress worn by Audrey Hepburn in the film Breakfast at Tiffany’s or Manolo Blahnik’s Hangisi pumps on Carrie Bradshow’s feet in television series Sex and The City iconic have not only not changed, but have strengthened the link between fashion and other media, making clear the strength of that connection in terms of publicity and revenue.  And in fact, today brands are increasingly aware of how much their image and entire business revolves around and depends not only on the physical object itself (i.e., the dress, accessory, etc.), but also on the skillful use of other media.

Some examples are the success of the telefilms Bridgerton, which resulted in a +23% increase in demand for corsets; the Gossip Girl reboot, which reinvigorated preppy looks with a +47% increase in sales of plaid vests and +41% increase in pleated miniskirts; and of the Halston TV miniseries, which drove a +550% increase in searches for the brand.

Another area of expansion in the fashion world – less beaten and undoubtedly more niche – is literature. In this regard, it has been noted how some brands are experimenting with new forms of marketing, untethered from products, that aim to position them in a more ethereal and “poetic” dimension.

Among these, one example is the partnership in contracts between fashion companies with writers or poets, who take on a testimonial-like role (think, for example, of poet Amanda Gorman, who wore a Prada coat during U.S. President Biden’s inauguration speech, which later went viral).  Another form used is the sponsorship of literary events or the creation of content of a cultural nature: for example, on the occasion of an exhibition dedicated to Pier Paolo Pasolini, Gucci produced with an independent label a vinyl, titled “Canzonette,” displayed in the itinerary, with graphics composed of works created by the illustrator Martoz, who was in turn inspired by a series of photographs that portrayed the author.

This last example is helpful in understanding the amount of different rights that can intersect when thinking about such a project and the related contracts that must be entered into by the brand. In this case, for example, it is possible to assume that (i) sponsorship or partnership contracts with the museum and/or exhibition organizer, (ii) a music publishing and production contract, (iii) a contract by which the work was commissioned from the illustrator, and (iv) an authorization to use the photographs by the photographer or his or her heirs have been signed by a fashion brand.

Given this increasing complexity, it therefore becomes essential to carefully evaluate all contractual clauses and the allocation of responsibilities between the parties.  Without prejudice to the fact that each contract (collaboration, product placement, partnership, sponsorship, testimonial, and so on) requires specific shrewdness, below we frame-more generally-the most relevant clauses in this type of project:

1. If the brand delivers its products (e.g., to a film producer), it will be necessary to regulate the modalities and term of delivery and transportation costs, establishing which party bears the cost.  When the products are to be returned (e.g., once filming has ended), it will be necessary to state in the contract the date by which they are to be returned, as well as the costs of any transportation. In addition, provision should be made for products to be returned in the same state in which they were delivered;
2. It is always desirable to indicate in detail how the clothes and accessories are to be presented and placed within the relevant narrative context, how long they are to be displayed, and to what extent.  These elements should also be taken into account in relation to the consideration that the contracting party may demand from the brand.
3. Obligations and guarantees on the part of the contractual counterparty will include, among other things, ensuring that the narrative context in which the products are placed does not violate the rights of third parties of any nature, nor legal regulations or other previously signed agreements; that the products and/or brands will be used and displayed in such a way that they do not harm or prejudice the image and reputation of the brand; that brand credits are explicitly stated, and so on.
4. It is then important to regulate the liability of the contracting party and any compensable damages, for example, in the event that the products are damaged, in the event that the production of the work is cancelled, in the event that the use of the products is not in line with the brand identity.
5. In the case of a testimonial contract, it will be crucial to regulate a possible exclusivity, the transfer of image rights, cancellation and termination assumptions, as well as to provide for moral clauses. Moreover, if the influencer is a literary person or a poet, brands will have to be willing to negotiate contracts that are less rigid than traditional influencer marketing contracts, given the need to guarantee the widest artistic freedom to the author and the need to disengage from purely commercial logics, with the risk – however – that it will become increasingly complex to identify the boundary between cultural operation and hidden advertising.

It is clear, therefore, that in an increasingly complex scenario such as the current one, in which fashion is no longer confined to the catwalks, the legal instruments that make these collaborations possible must necessarily be flexible in order to regulate unprecedented scenarios in the intricate relationship between different film, television and cultural sectors and new forms of marketing.

On a similar topic, the article ”The sale of NFTs depicting the MetaBirkins constitutes infringement of the brand’s intellectual property rights” may be of interest.

Photo by Documerica on Unsplash