Like many people who love fashion, I was obsessed with Project Runway®, a long-running and ongoing reality TV show whose goal is to discover a new and amazing fashion designer. So naturally, when Amazon Video announced that they would be filming a new reality show called “Making the Cut”, with the original hosts of Project Runway (Heidi Klum and Tim Gunn), I was excited to watch.
Making the Cut’s first season (aired from March 27th – April 24th, 2020) show-cased contestants who are established fashion designers and are looking to take their brands to the next level. The judges included the above-mentioned Heidi Klum, alongside well-known personalities Naomi Campbell (Supermodel), Joseph Altuzarra (Founder and Creative Director of Altuzarra), Carine Roitfeld (French Vogue Fashion Editor), Nicole Richie (Creative Director of House of Harlow 1960) and Chiara Ferragni (Italian entrepreneur and Fashion Blogger).
Each episode had a winning design (a singular look) which would be immediately available for purchase on Amazon.com, and the winner of the final episode at the end of the season received a) a $1Million investment from Amazon, b) a mentorship from Amazon Fashion’s CEO Christine Beauchamp and c) the privilege of designing a collection (a collection will usually include a variety of styles, from evening wear to sportswear to outerwear) to be sold exclusively on Amazon.
The last episode of the season saw the final two contestants pitching their design ideas to the above-mentioned Christine Beauchamp. (This gave [or could have given] the impression that Amazon was in possession of all the cards, including what products should be designed and how they would be produced, as well as choosing the winner. This is in stark contrast to other fashion competition shows such as “Project Runway” and Netflix’s® “Next in Fashion®”, where those judging the competition and selecting a winner are not the investors or those producing and selling the fashion line).
The winner of the shows first season was Johnny Cota, the owner, and designer of Skingraft®, and now additionally “Cota by Johnny Cota®” which he launched while on the show. In an interview with Brad Goreski, after the season concluded, Cota stated that he was always planning on using the show as a platform to launch “my new brand and my new branding concept”.
While some are saying that Cota, based on this success taking place during the current Corona pandemic, may-be one of the luckiest emerging designers, to me Cota’s newfound success seems to raise a number of potential concerns, by which there may be quite a few Intellectual Property strings attached, with Amazon looking like quite the puppet master!
Why do I say this? Let’s see:
While on the show, Johnny and the other contestants used both their pre-existing and new trademarks, as well as new and innovative garment designs created on the spot and fabrics. All of the newly created trademarks and designs have inherently protectable intellectual property rights. As those experienced in IP are aware, even without the additional exposure that reality TV provides to worldwide audiences, protecting new designs and trademarks can be complex and must be handled correctly. The complexity can be exacerbated by the exposure brought by the show, bearing in mind that anyone watching it has immediate access and knowledge of the designs and design process.
Typically, when a designer is in the process of designing his next creations, he can apply for protection prior to the release of the design, namely, the sale of garments embodying the new design. While it is true that the show is filmed months prior to its release, somewhat (although not completely) mitigating this problem, it still begs the question as to the ownership of the rights to the designs as created on the show. Is it the designer or, as the sole investor and producer of the fashion line, is it Amazon? Or -arguably worse still – are the rights unprotected altogether?
Who Does Own the Rights?
So, has Cota retained any rights to the designs created for Amazon such that he can market them independently? Or does Amazon have exclusivity? It is possible that the agreement between Amazon and Cota (as well as the other contestants) is a work for hire scenario. However, if those rights extend to a new label, will that preclude any independent use by Cota of that same label? And will his agreement with Amazon effectively mortgage all or any of Cota’s future designs to them? Is such a new label, per se, exclusive to Amazon or do their rights extend solely to the first fashion line created under that label?
In its report about Rinat Brodach, one of the contestants of the first season of Making the Cut, the Times of Israel reported that “the designer is back in New York”, “preparing a new collection based on her work during the show” (emphasis added). Taken together with the fact that she has not maintained any Amazon related online presence, it would seem that the designers do maintain a level of ownership of their designs after the show.
Possible IP Arrangements
From a legal perspective, there are a few ways contestants on a competition show can maintain and protect the Intellectual Property rights to their designs and trademarks being used and shown. One obvious way would be a licensing deal between Amazon and the contestant giving Amazon the rights to the IP so long as the contestant is on the show. Only allowing Amazon to use those rights in the context of the current season when and if the items are sold on the Amazon platform.
Another way to protect the IP rights is by registration of the contestants’ designs and trademarks during the period of time between the end of filming of the series and the release of the first episode.
We do not know what the agreements between Amazon and the contestants look like. It may very well be that Cota and the other contestants had licensing deals in place prior to the start of filming or registered the designs and trademarks after filming.
Opportunities During Crisis
Putting the above IP concerns aside, Cota’s success was certainly related to the timing of the show. As the Covid-19 pandemic struck when production for Cota’s line was meant to begin, Amazon handed the reins for production back to him and he was thus able to produce his line the way he saw fit and, as he said, “maintain the ethics of his brand”. He used his own production line in Bali and ensured that the sustainable fashion brand he sought, was produced the way he had envisioned. He was quoted as saying “When things crumble it gives way to new designers”. Referring to the Covid-19 pandemic and to the fact that while so many of his fashion colleagues’ brands collapsed, it also gave newer designers, such as him, a chance to flourish and an opportunity to grab the chance with both hands.
It can only be hoped that the first season contestants were able to maintain some of the rights to their designs and labels. It remains to be seen however whether or not to be the standard for further seasons and contestants and their ability to maintain such control over their designs and production.
I’m excited to see how Amazon furthers this new advantageous show and their hold on the fashion industry. With more and more brands entering the sustainability space and lessening their production Amazon seems to be going in the opposite direction with expanding their space and production. By buying into the fashion space and taking ownership over so many brands including the designs created on Making the Cut.
In short, while IP rights are an important tool, and I would like to hope that any arrangements between Cota and Amazon were fair and above board, it is clear that a little bit of luck is required for any new name to be able to break out. In Cota’s case, the luck was the opportunity provided to him by Amazon – as the economy shut down and opportunities shrank for most of his colleagues/competitors. Jonny was able to take the opportunity to flourish and expand his brand and created what may become one of the leading brands of the future.
© Copyright JMB Davis, Jerusalem, Israel July 2020. All Rights Reserved.