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A more conservative version of this article was first published in the Lexis Nexis Internet Law Bulletin November/December 2015 Vol 28 No 9-10

I am hesitating to type the name…Miley Cyrus. There, I did it!

Miley Cyrus is hardly someone who lacks publicity. And the scandal surrounding her alleged intellectual property infringement at the Video Music Awards (VMAs) is almost certainly the least salacious of a string of faux pas, setups and just plain weirdness. It’s becoming increasingly difficult to tell whether they were all planned, or unintentional. But no matter, because this performance cemented Cyrus’ reputation as an exhibitionist and button pusher, par excellence.

The whole thing car crashable, watchable weirdness. From Cyrus’ response to Nicki Minaj’s criticism of her defence in the New York Times of white girl supremacy, to her performance of ‘Dooo It’. 30 of ‘RuPaul’s Drag Race’ Queens joined Cyrus, all in elaborate stage dress and all featuring prominent eyeball motifs.

Her performance received mixed reviews, but minimally, it was entertaining. Those who like to watch a Mouseketeer gone wrong could still catch glimpses of the Disney child star peeping through the crassness. That early training sticks with you. For someone described as the ‘queen of unpredictability’, Cyrus was predictable in her attempts to appear edgy and unrelentingly vulgar. But I digress because it was Cyrus’ outfits, not her performance, that are the point of this article.

Cyrus has had her fair share of costume scandals. However, her VMA performance this time involved Melbourne fashion label, DI$COUNT UNIVER$E and potential copyright infringement. Designers Nadia Napreychikov and Cami James have been selling their flamboyant streetwear and stagewear to celebrities and ordinary Australians alike, all who want to stand out from the crowd.

DI$COUNT UNIVER$E adopted several motifs in their designs including a Third Eye and Rolling Stone style lips. There is a pop art sensibility and irreverence to their work in the manner of older Australian labels such as Mambo, Wheels and Doll Baby, and Romance was Born.

Cyrus wore a DI$COUNT UNIVER$E t-shirt in photographs publicising her Bangerz world tour last year and published these images to her 17 million Twitter followers. In doing so, she presented the early stage fashion label with invaluable global publicity, otherwise worth millions of dollars.

The relationship, however, seems to have recently soured since Cyrus featured Brad “BCalla” Callahan’s designs in her performance. The outfits prominently displayed the Third Eye motif and other recognisable hallmarks of DI$COUNT UNIVER$E.

These outfits were sufficiently derivative and evocative of DI$COUNT UNIVER$E that fashion watchers apparently flooded the designers with congratulations, assuming that the costumes featured at the VMAs were DI$COUNT UNIVER$E designs.

BCalla’s reported position is that he was inspired not by DI$COUNT UNIVER$E, but by Salvador Dali and Kansai Yamamoto. The Sydney Morning Herald added that he did not mention Jean-Charles de Castelbajac. Under BCalla’s label, JC/DC designed a dress for Katy Perry to wear to the 2008 MTV music awards featuring a bodice comprised of two large eyes that look quite similar to those debated now.

BCalla has been quoted saying that, “DI$COUNT UNIVER$E is a major brand anyone with a slight interest in fashion would know. I have only respect for them.” He went on to say that, “I am well aware of the challenges of being an independent designer in this industry, but it would be a disservice to my creative inspiration in this case to say Discount Universe was a reference point.”

As many others have already pointed out, fashion recycles old ideas and passes them off as new. Sometimes this is done by reinterpreting previous designs, and sometimes it is done by just copying them. I have known rag traders who go on business trips with an extra empty suitcase to fill with “inspirations” for their new lines that they intend to pick up offshore.

Part II of this series begins looking at what designers can do to protect intellectual property in their designs.

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