Fashion, Intellectual Property and Freedom of Artistic Expression in the Age of Metaverse and AI: A Digital Constitutionalist-Approach

The fashion industry boasts one of the largest market shares for e-commerce. Statical projections indicate that the global fashion e-commerce market will benefit from continuous growth. In this context, intellectual property rights ('IPRs'), mainly trademarks, copyright and designs, have a role to play when protecting fashion items. However, they are also increasingly confronted by new creative practices made possible in the digital environment, fueled by advancements in frontier technologies, such as blockchain and artificial intelligence. The trait d'union of these conducts is the artistic (re)use of the IP protected fashion works without the consent of rightsholders. Courts are tasked with resolving the tensions between creators invoking freedom of artistic expression (Arts. 11 and 13 EUCF) and fashion houses seeking exclusive control over their creative works (Art. 17.2 EUCF). By way of drawing a parallel between trademark, designs and copyright litigations in the fashion industry, this article introduces a matrix containing some interpretative coordinates also grounded in the doctrine of digital constitutionalism to address the clashes between those fundamental rights which occur in the virtual fashion world(s) too.