Upcycling has enjoyed great popularity in the fashion industry for several years. The fashion magazine Vogue (1) described upcycling as “the biggest fashion trend of the present”. The fashion industry is increasingly committed to a more sustainable world with a circular economy, and upcycling fits into this evolution.
This is also partly due to the fact that many brands have retained unsold stock due to the Covid pandemic and that from 2023 the textile industry will be partly responsible for the collection and recycling of textile waste itself.
Upcycling is defined in dictionaries such as the Dutch Van Dale as the reuse of (residual or waste) products in the form of a higher value product. Upcycling goes one step further than recycling: recycling often involves first destroying an existing product and then creating a new product of equal or lesser value. For example, think of jeans being disassembled to make new denim fabric.
Upcycling, on the other hand, keeps (part of) the existing product, but with the addition of creativity and craftsmanship, a different product, often of greater value, is produced. The design label Hacked By_ by Francisco van Bentum and Alexander Slobbe is a good example of this. The label “hacks” the fashion system, using existing garments and leftover materials as the basis for new, affordable items. Hacked By_ creates new designs with respect for the original garment: it is a combination of recycling and upcycling.
Another great example of a Dutch designer reusing “discarded designer fabrics” for couture pieces is Tess van Zalinge. Last year she launched her “Naturally” collection:
“It fascinates me how one can preserve nature, capture an emotion or a memory from that nature without altering it. The suggestion of recognizable nature, without touching or disturbing it, is presented in many layers in my new work as a changed view of reality is used. In the “natural” collection, leftovers from well-known major fashion houses are used. Bringing waste and discarded products from industry back to life corresponds to my strong urge to constantly renew myself as a designer – every step is a step towards addressing waste with integrity and intrinsic value.”
Upcycling: legal pitfalls
Upcycling can bring legal problems. Upcycling doesn’t always mean adding value, and sometimes it’s just about aligning with a well-known brand under the banner of “sustainability”. Intellectual property rights such as copyright, trademark, design and slavish imitation can set limits to upcycling. Because with upcycling, the existing product is (partially) retained and supplemented with additional creative elements. The question then arises as to whether there is a right to exhaustion of intellectual property rights when changes are made to the existing product. A lawsuit has already been filed in the United States over the reuse of Chanel buttons in jewelry (2).
Trademark law is a serious obstacle to upcycling branded goods. A brand owner can object to further distribution of their branded product if the nature of the original product has changed. The upcycler can then not rely on the exhaustion of trademark rights. An upcycler quickly encounters this problem as the original branded product is being modified by adding new creative elements. A German court ruled as early as 1995 (3) that the bleaching and redyeing of Levi’s jeans represented a change in the branded product and affected the Levi’s brand’s guarantee of origin and quality and was not permissible.
So what options do you have as an upcycler? Remove the brand? Or add a note? Debranding can certainly be a solution, especially when upcycling involves creativity and the new upcycled product looks different than the original branded product. However, problems can arise if the mark is a shape mark or a position mark and therefore the mark cannot be removed.
Keeping the brand and adding a hint doesn’t seem like a solution in the fashion industry either. A disclaimer should be designed in a way that dispels the impression of a commercial connection between the brand and the upcycled product. In today’s fashion world, where many brands also upcycle themselves and collaborations and co-creation between brands and designers are the order of the day, it is easy to get the impression that there is a commercial connection. In this case, there’s not much point in attaching a disclaimer to the upcycled branded product.
Copyright can also create barriers to upcycling. In a case concerning the reproduction, by a chemical process, of an image of a poster on a canvas, after which all that remained of the poster was a blank sheet, the Court of Justice (4) ruled that the replacement of the medium, that is to say the poster through the canvas containing the image actually constitutes a new reproduction against which the original author (author) can take legal action.
Upcycling often creates a new creative product using only a portion of the original work or design. So the question is whether the upcycled product is a disclosure of part of the original work or an edited version of the same. If the upcycler can no longer prove the copyrighted features in the newly upcycled product, then no copyright infringement appears to have occurred. It remains difficult to determine where the line falls between adapting a copyrighted original, which is therefore not legal, and creating a new, original, upcycled work that does not infringe copyright.
Upcycling creates wonderful new designs and that is certainly to be welcomed from a sustainability perspective.
Van Zalinge believes that by working together as a basis for mutual help, knowledge sharing and joining forces, we can contribute to an innovative and healthier fashion industry. From the creative process to approaching the concept of sustainability, all creatives have an authentic way of doing things that others can learn from. Van Zalinge’s latest collection, ‘Naturally’, conveys this vision through interdisciplinary connections. For example with the pioneers of digital design Studio PMS, the textile innovator Studie Vivèrdie and the shoe craftswoman Sophie Tine. The intersection of expertise, discipline and approach is what makes the collaboration in this collection so exciting.
However, upcycling can also pose many legal issues, and the intellectual property rights of brands and designers can prevent upcycling. The question, however, is whether it makes sense for a brand to take action against upcycling. Upcycling is sustainable and has a positive image: A brand’s action against upcycling could trigger a PR nightmare (5).
Written by Margot Span of Spargo Legal. Margot specializes in intellectual property law and commercial contracts and regularly reports on current legal issues in the Rechtspraak column. [www.spargolegal.nl](www.spargolegal.nl)
- (1) Emily Chan, ‘Upcycling is the biggest trend in fashion now’ Vogue UK 23 November 2020.
- (2) https://www.thefashionlaw.com/?s=chanel+buttons
- (3) Federal Court of Justice 14 December 1995, I ZR210/93, Dyed Jeans.
- (4) HvJ EU 22 January 2015, C-419/13 Art & Allposters International/ Stichting Pictoright
- (5) IER 2022/18: Upcycling – Op het snijvlak van duurzaamheid en intellectual property. NQ Dorenbosch