Do you know your bitmoji's clothes can infringe copyright laws?

Author:Gurleen kaur, final year Bba llb student.

Have you ever dressed your bitmoji to look exactly like you, complete with branded clothing and cool trainers? This may appear to be a simple concept, but you may be unaware that your virtual outfit may violate real-world copyright laws. In this blog, we will look at what bitmoji is and how metaverse fashion works. Which laws are being implemented to address issues of metaverse fashion copyright infringement, as well as the challenges that Indian laws face, as well as a brief discussion of real-life examples and cases. 

What is bitmoji?

A bitmoji is a DIGITAL AVATAR that you can use on the Snapchat app to represent yourself in the metaverse. In this app, you can customise your bitmoji with various hairstyles, facial features, and digital clothes. Snapchat has a large collection of clothes that are inspired by real-world brands or designed by creators, and some of the branded clothing is even paid for.

What is Metaverse fashion?

Metaverse fashion refers to the digital clothing and accessories worn by avatars in virtual worlds such as Snapchat, Decentraland, and Roblox.

Some digital clothes and accessories are sold as NFTs or collectible items, while others are purely for fashion. Digital users frequently buy, wear, and trade these clothes in the same way that they would in person. As this trend grows in popularity, so does the risk of copying someone else's fashion designs, bringing us to the legal side.

Indian laws that protect fashion and digital designs

First, we have the Copyright Act of 1957, which protects original artistic works such as fashion sketches, prints, and logos. It can also be applied to virtual designs that meet the originality criteria.

Following that, we have the Designs Act of 2000, which protects original clothing and garment designs, even if they are digital and registered. It protects the registered design from being copied or imitated.

The Trademarks Act of 1999 protects the logos, brand names, and symbols used on clothing. Furthermore, under this act, using brand elements such as the Nike tick or adidas stripes on bitmoji clothing constitutes a trademark violation.

India's new law : DPDP Act, 2023.

The Digital Personal Data Protection Act, 2023 is a new Indian law that protects individuals' personal digital data. This act specifies how your photos, biometrics, and preferences will be collected and used. Snapchat Bitmoji frequently collects appearance-related data, such as your face shape, skin tone, and hairstyle, to create your avatar. And when combined with fashion preferences and user behaviour, it becomes sensitive personal information.

 According to the DPDP Act, if your bitmoji or digital fashion data is misused, shared, or stored without your consent, it may be a violation.  Companies that offer digital outfits must also ensure proper data consent5 and transparency in accordance with applicable laws.

What international laws say about digital fashion and copyright

1. The Berne Convention for the Protection of Literary and Artistic Works is an international agreement that protects copyright across borders. The Berne Convention's primary goal is to ensure that if a creator or artist creates a work in one member country, it is automatically protected in all other member countries without the need to register in each one.

2. The World Intellectual Property Organisation (WIPO) assists countries in promoting and protecting intellectual property such as inventions, artworks, brands, music, literature, and design. The primary goal of WIPO is to protect people's original works such as arts, music, books, design, and logos not only in their home country but around the world, to prevent others from copying or misusing their works, and to earn recognition and financial benefit from their creation.

3. US copyright law offers strong protection for creative digital content, including fashion NFTs and avatar clothing. 

Challenges Metaverse fashion faces in India

In India, there is no specific definition of digital fashion in intellectual property laws. Also, the registration process is time-consuming and primarily conducted offline. Due to the lack of updated laws, it is difficult to enforce rights on cross-border platforms such as Snapchat or Roblox.

There is also a lack of awareness about the protection of personal digital data, and users are unaware of how to protect digital designs or whether they are infringing on the rights of others.

Real life case scenarios

1. The Hermès vs. Metabirkins (2022) case was a landmark trademark dispute in which luxury brand Hermès sued digital artist Mason Rothschild for creating and selling "MetaBirkins" NFTs—virtual handbags inspired by Hermès' iconic Birkin bags. Hermès claimed there was trademark infringement, brand dilution, and consumer confusion. Rothschild claimed artistic freedom, but a US jury found in favour of Hermès and awarded $133,000 in damages. This case established a strong precedent that intellectual property rights apply even in the Metaverse, emphasising that digital fashion and NFTs must not use real-world brand identities without permission.

22. Nike vs. StockX (2022-ongoing): In 2022, Nike sued StockX, a popular sneaker resale platform, for selling "Vault NFTs"—digital tokens associated with Nike shoes—without its permission. Nike claimed that these NFTs infringed on its trademarks, diluted its brand, and caused consumer confusion.

2Nike later claimed that some of the physical shoes associated with these NFTs were counterfeit, further damaging its brand.

bStockX defended itself, claiming that these NFTs were simply digital receipts for the resale of genuine Nike products, not new creations, and were not misleading.

aTheIndia's new law : DPDP Act, 2023.

The Digital Personal Data Protection Act, 2023 is a new Indian law that protects individuals' personal digital data. This act specifies how your photos, biometrics, and preferences will be collected and used. Snapchat Bitmoji frequently collects appearance-related data, such as your face shape, skin tone, and hairstyle, to create your avatar. And when combined with fashion preferences and user behaviour, it becomes sensitive personal information.

 According to the DPDP Act, if your bitmoji or digital fashion data is misused, shared, or stored without your consent, it may be a violation.  Companies that offer digital outfits must also ensure proper data consent5 and transparency in accordance with applicable laws.

What international laws say about digital fashion and copyright

1. The Berne Convention for the Protection of Literary and Artistic Works is an international agreement that protects copyright across borders. The Berne Convention's primary goal is to ensure that if a creator or artist creates a work in one member country, it is automatically protected in all other member countries without the need to register in each one.

2. The World Intellectual Property Organisation (WIPO) assists countries in promoting and protecting intellectual property such as inventions, artworks, brands, music, literature, and design. The primary goal of WIPO is to protect people's original works such as arts, music, books, design, and logos not only in their home country but around the world, to prevent others from copying or misusing their works, and to earn recognition and financial benefit from their creation.

3. US copyright law offers strong protection for creative digital content, including fashion NFTs and avatar clothing. 

Challenges Metaverse fashion faces in India

In India, there is no specific definition of digital fashion in intellectual property laws. Also, the registration process is time-consuming and primarily conducted offline. Due to the lack of updated laws, it is difficult to enforce rights on cross-border platforms such as Snapchat or Roblox.

There is also a lack of awareness about the protection of personal digital data, and users are unaware of how to protect digital designs or whether they are infringing on the rights of others.

Real life case scenarios

1. The Hermès vs. Metabirkins (2022) case was a landmark trademark dispute in which luxury brand Hermès sued digital artist Mason Rothschild for creating and selling "MetaBirkins" NFTs—virtual handbags inspired by Hermès' iconic Birkin bags. Hermès claimed there was trademark infringement, brand dilution, and consumer confusion. Rothschild claimed artistic freedom, but a US jury found in favour of Hermès and awarded $133,000 in damages. This case established a strong precedent that intellectual property rights apply even in the Metaverse, emphasising that digital fashion and NFTs must not use real-world brand identities without permission.

22. Nike vs. StockX (2022-ongoing): In 2022, Nike sued StockX, a popular sneaker resale platform, for selling "Vault NFTs"—digital tokens associated with Nike shoes—without its permission. Nike claimed that these NFTs infringed on its trademarks, diluted its brand, and caused consumer confusion.

2Nike later claimed that some of the physical shoes associated with these NFTs were counterfeit, further damaging its brand.

bStockX defended itself, claiming that these NFTs were simply digital receipts for the resale of genuine Nike products, not new creations, and were not misleading.

aThe case is still ongoing, but it is already a watershed moment that raises fundamental questions about how trademark law applies in the NFT and Metaverse spaces.

Space.

Conclusion

With emerging trends, digital fashion is rapidly expanding, as are the issues surrounding its use, but laws are still catching up. Which needs to be updated quickly. We attempted to cover all aspects of digital fashion copyright infringement issues above, and after reading this, keep in mind that whenever you design or use bitmoji outfits that copy real brands, you may be infringing on copyright, trademark, and even data protection laws.

The new Indian law, the DPDP Act, 2023, adds another layer, focussing primarily on privacy and consent, particularly in personalised platforms such as Snapchat and Roblox, which allow users to create bitmojis and other content. And since virtual does not equate to lawlessness, it is high time that we treat digital fashion with the same seriousness as traditional fashion.