Part II: Giorgio Armani’s Fashion Heritage and Cultural Heritage Preservation

The first part of this post reflected on what we can learn about managing fashion legacies from Mr. Armani’s choices shortly before his death. It explored how the Spring/Summer 2026 Armani fashion show indicated Mr. Armani’s control of his fashion heritage alongside of and beyond the Armani brand’s intellectual property rights in the fashion he created. In this second post, I spotlight how Mr. Armani’s decision to display his fashion creations in the Pinacoteca di Brera and in other museum venues was part of a strategy to bypass Italian cultural heritage law’s protectionist ethos, offering the designer and his brand control over the cultural narrative surrounding Armani fashion for the future.

Mr. Armani clearly had safeguarding his fashion legacy in mind over the past few years as he prepared for his brand’s 50th anniversary. As Mr. Armani stated in his last interview, “If what I created 50 years ago is still appreciated by an audience that wasn’t even born at the time, this is the ultimate reward.” Outside of a for-profit fashion industry market that might appreciate Mr. Armani’s fashion as must-have vintage pieces, Mr. Armani’s fashion can be appreciated as part of our common cultural heritage.

Clothing, accessories, and other tangible and intangible products from brands’ pasts can be culturally important to members of the public. These objects can testify to specific moments in time, be historically important, or artistically relevant. The public for whom these objects are culturally important may include a brand’s consumers and more stakeholders within and outside the fashion industry. International and national laws tell us how to treat properties that are culturally important to us. We cannot, for example, destroy “immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular” during wartime, absent military necessity. Countries should return “antiquities more than one hundred years old” to other countries that have designated these antiquities as of historical importance. Countries also need to help communities within their borders to identify, document, research, and preserve languages, performing arts, and other social rituals and traditional craftsmanship that a community recognizes as part of its cultural heritage.

Some countries that are known as source nations, like Italy, provide national legal preservation mechanisms for movable and immovable properties, including monuments and antiquities that approximate or are even more stringent than the local preservation regulations we encounter in individual states in the U.S. Public or non-profit museum collections in Italy, like that of the Pinacoteca di Brera, for example, are automatically classified as cultural property under Article 10(2) of Italy’s Code of Cultural Property. This classification is accompanied by an almost perpetual obligation to preserve the collection’s individual tangible properties, through restoration and similar activities. But works of art and other objects of particularly important historic interest, including fashion objects, may also be declared to be cultural properties under Article 10(3) of Italy’s Code of Cultural Property if they are owned by private persons or other for-profit entities. A private individual or for profit corporation, like a fashion brand, may find they have an extensive duty to preserve an object or even an archive they inherit because of a cultural importance that is administratively recognized by the Italian State.

In the United States we primarily tend to define legal duties to preserve movable, tangible works of art based on museums’ institutional duties. While our National Historic Preservation Act applies to mostly immovable objects or movable objects with a strong connection to a place, and we do recognize the importance of archeological artifacts, museum guidelines, from the International Council of Museums’ Code of Ethics to the American Alliance of Museums’ Ethics,  overwhelmingly offer the main best practices and customary norms for museums’ management of movable works of art. The classic comparative example that highlights legal differences between the U.S. as a market nation and Italy as a source nation considers the different options available to an art collector who buys a Da Vinci painting at auction in New York or in Milan. In Milan, the art collector could certainly not set fire to the Da Vinci after buying it, even if she wanted to. Italian cultural property law would make this a crime, even if the collector owned the Da Vinci herself. In New York, on the other hand, providing there are no contractual conditions attached to the Da Vinci as part of the sale, a collector could merrily take the Da Vinci home and burn it in her fireplace as her own personal property.     

As cultural properties, including works of art, become more intangible and reproducible, the reasons to physically preserve works of art become tenuous. Justifications for preservation of a tangible cultural property may morph into an obsession with controlling the symbolic meanings of cultural properties. Italian museums’ control over the reproductions of tangible cultural properties in their collections, like Michelangelo’s David, for example, has come under scrutiny. This scrutiny is especially vibrant since the justification of preserving a tangible property may morph into a mutant copyright that potentially hampers projects that are themselves culturally relevant, albeit at a frontier of commercial and non-commercial endeavors. Why preserve one tangible object that appears in multiples? Why control the reproduction of a tangible object if an unregulated digital reproduction of it can support knowledge and appreciation of the object’s historic importance? Why preserve a tangible sketch by Mr. Armani when we can digitize the sketch and appreciate its cultural importance for fashion history from anywhere in the world?

A sketch by Mr. Armani of a suit for Fall/Winter 1990, now available as part of the Armani/Archivio project

Continue ReadingPart II: Giorgio Armani’s Fashion Heritage and Cultural Heritage Preservation

The Legacy of Giorgio Armani: Fashion Heritage between Intellectual Property Rights and Cultural Heritage Law

This is Part I of a two-part series. Part II is here.

On Sunday, September 28th, the last day of Milan Fashion Week, global celebrities, members of Milanese society and the Italian fashion industry, and throngs of everyday people, gathered in Milan’s Brera district outside of one of Italy’s most celebrated museums, the Pinacoteca di Brera. There to watch the Spring/Summer 2026 Giorgio Armani fashion show, the last presentation completely designed and imagined by the brand’s founder, Mr. Armani, before his unexpected death a few weeks earlier, the crowd and attendees could feel that they were part of a cultural moment. Indeed, the fashion show was not the only event dedicated to Mr. Armani in the museum. As models walked a runway in the museum’s courtyard, still other Armani fashion was exhibited within the museums’ galleries next to Renaissance paintings and later 19th century masterpieces, like Francesco Hayez’s The Kiss. Giorgio Armani. Milano, per amore, the first fashion exhibition within the museum’s galleries, allows Mr. Armani’s fashion to pervade the Pinacoteca, an autonomous Italian state museum under Italian law meant to preserve and valorize parts of our cultural heritage.  

An image of a model in Armani’s Spring/Summer 2026 fashion show

An image of a model in Armani’s Spring/Summer 2026 fashion show

An image of an Armani look in the museum’s galleries

An image of an Armani look in the museum’s galleries

Originally planned to celebrate the Armani brand’s 50th anniversary, the retrospective of Armani’s fashion in the Pinacoteca and the Spring/Summer 2026 Armani fashion show hosted by the brand in the museum’s courtyard have a new meaning after Mr. Armani’s death. Along with the decisions Mr. Armani made in his will, the brand’s fashion show and the museum exhibition offer examples for fashion designers eager to control their own fashion legacy in a space between intellectual property rights’ incentives to create and cultural heritage law’s preservation ethos.

In the first part of this post reflecting on what we can learn from Mr. Armani’s choices shortly before his death, I highlight how the Armani fashion show indicates how Mr. Armani controlled his fashion heritage alongside of and beyond the brand’s intellectual property rights in the fashion he created. In the second part of the post, I spotlight how Mr. Armani’s decision to display his fashion creations in the Pinacoteca and in other museum venues was part of a strategy to bypass Italian cultural heritage law’s protectionist ethos, offering the designer and his brand control over the cultural narrative surrounding Armani fashion for the future.

Giorgio Armani’s fashion continues to live on a frontier that is defined by business activities, cultural endeavors, and legal rights that defy the boundaries we traditionally identify with intellectual property law and cultural heritage law. Understanding how this frontier operates through the Armani case study is one way to imagine how fashion designers, and their eponymous brands, may decide to preserve and perpetuate their fashion and its cultural relevance in the future.

Continue ReadingThe Legacy of Giorgio Armani: Fashion Heritage between Intellectual Property Rights and Cultural Heritage Law

Grapes of Roth, Part II: A Sheep in Wolf’s Clothing

[This is the fourth in series of posts summarizing my new article, “The Grapes of Roth.”]
Introduction
Part I-A: Duck-Rabbits in Equity
Part I-B: Counting to 21 Similarities

By the mid-1970s judges in both the Second and Ninth Circuits realized that the “recognizability” standard for copyright infringement determinations was unworkable. As Roth Greeting Cards and International Luggage Registry had demonstrated, mere recognizability swept uncopyrightable as well as copyrightable material into the comparison, and hinged the infringement determination on the faintest suggestion of either. Some test was needed that would allow courts to do all three parts of the difficult balancing act described in Part I-A, in particular the assessment of how much protectable material was taken and whether that amount surpassed some threshold that made it unreasonable. Pre-Legal-Process courts had tackled these questions, but without saying much more than that the defendant had “wrongfully appropriated” the plaintiff’s protected expression, or taken its “aesthetic appeal,” or “justified” an infringement claim. Such openly normative assessments, relying on the judge’s subjective evaluation of the material taken, plainly would not do in a more formalist age. An alternative framework was needed.

Two decisions in rapid succession, one from the Second Circuit and one from the Ninth, latched onto the “total concept and feel” phrase as a way to express an overall level of similarity or dissimilarity in protected expression without openly making a normative or aesthetic judgement. In Reyher v. Children’s Television Workshop (2d Cir. 1976), the Second Circuit considered a claim by the authors of a children’s book based on a simple story: a lost child describes her mother only as “the most beautiful woman in the world,” which delays finding her because the mother does not meet conventional expectations of beauty.  Sesame Street Magazine published a 2-page story that followed the same basic plot, but had different dialog, different illustrations, and was set in a different location. Was it infringing? Certainly the story was recognizable, but in almost every other detail the works were completely different. Reaching for a way to assess the protected expression in the stories holistically, the panel fell upon the empty verbiage from Roth: Given the simplicity of the stories, the court suggested, “we might [also] properly consider the ‘total concept and feel’ of the works in question.” Aside from a similar sequence of events, which the court found to be unprotectable scènes à faire, the remainder of the stories had an entirely different “total feel,” and thus there was no infringement.

The following year, the Ninth Circuit found its way back to the Roth formulation as well. In Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., the plaintiffs claimed that their children’s television show, “H.R. Pufnstuff,” had been ripped off to make the McDonaldland characters — Grimace, the Hamburgler, Mayor McCheese, etc. The issues were whether the jury verdict of infringement was correct and whether damages had been properly determined. But the opinion started with a long discussion of the proper test for infringement, casting shade — without mentioning any names — on how it had been done up to that point. Merely asking about the similarity between two works — in other words, whether anything from the plaintiff’s work is recognizable in the defendant’s — produces “some untenable results,” the court noted. “Clearly the scope of copyright protection does not go this far. A limiting principle is needed,” namely one that separates out idea from expression and determines only the extent to which there has been copying of the latter.

The court then grandiosely declared, “The test for infringement therefore has been given a new dimension.” Unfortunately, as is well known, that new dimension was a thorough garbling of the Arnstein v. Porter decision from the Second Circuit, a misstep that has thrown Ninth Circuit caselaw for a loop it is still trying to recover from. But after mangling the concept of substantial similarity, the Ninth Circuit had to apply its new framework to the jury verdict below, which had held the McDonald’s characters to infringe the somewhat similar-looking H.R. Pufnstuf characters. Were they? The Ninth Circuit panel agreed with the jury. “It is clear to us that defendants’ works are substantially similar to plaintiffs’.” Why? “They have captured the ‘total concept and feel’ of the Pufnstuf show.”

In both Reyher and Sid & Marty Krofft, the reference to “total concept and feel” allowed the court to express a conclusion as to whether the defendants had taken too much copyrightable expression without specifically identifying what in the plaintiff’s work was expression, what in the defendant’s work was similar or dissimilar, and where the threshold level of similarity lay. “Total concept and feel” was thus a way of summing up all three of the difficult judgments an infringement determination required, and it did so in a way that met modern judicial norms while avoiding the ham-handedness of “recognizability.”

Continue ReadingGrapes of Roth, Part II: A Sheep in Wolf’s Clothing
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