On January 5, 2013 I was invited to be an industry professional in a speed-networking event for the Atlanta entertainment industry and to focus on fashion law. Organized by Allen Johnston, The Music Specialist, it featured over 40 industry professionals from film, television, fashion, and music to offer 5-minute rounds with industry talent to help them put their best foot forward. For more information and the next event date see:http://www.entertainmentindustryconnection.com.
Although I wasn’t giving a full presentation I did prepare some notes for those who are in the fashion industry and have put them below for your reference. Remember these are here for general educational purposes and do not constitute legal advice. For that you need to make an appointment with an attorney. To make an appointment with me click on the “Contact Me” tab above.
What is fashion law?
It is a niche field of legal practice that focuses on the billion dollar industry of making us look fabulous including design, manufacturing, distribution, marketing, retailing, communications, advertising, publishing, consulting, modeling, etc.
What does a fashion attorney do?
Fashion attorneys’ work includes intellectual property concerns (such as copyrights and trademarks), business law, contracts, labor and employment law, merchandising and licensing, customs, retail leasing, international regulations, and more.
Fashion attorneys’ clients include: retailers, designers, manufacturers, distributors, artists, small businesses, musicians, athletes, filmmakers, entrepreneurs, fashion magazines, fashion bloggers, and others who are involved in the fashion industry.
What are some fashion law issues that are trending right now?
One of the biggest debates in the fashion industry is the fact that clothing design is NOT copyrightable. This is based on the doctrine of functionality. Under the US Copyright Act, 17 USC Sec 101, “useful” articles – items with a functional quality – are not protected under the act. Recent court decisions have found that clothing is considered a useful article.
That has not stopped fashion designers from trying to protect their designs but they have a difficult uphill battle for they need to prove that there is a “separation” of the aesthetic elements and the utilitarian elements of the items – so can they prove that the artistic is separate from the function?
One old case, Mazer v Stein, 347 US 201 (1954) showed that the statute element of a lamp had copyright protection as a statute separate from the lamp, but that the entire lamp did not. However, the court in Jovani Fashion v Fiesta Fashion, 2d Cir, No 12-598-cv, 2012, dismissed the case saying that the “sequin and crystal covered bodice, the ruched sating at the waist, and the layers of tulle of the skirt” were not separable from the concept of a “prom dress” and they were all elements of what makes a prom dress a prom dress.
So this is why the day after the Oscars we see so many dress knock-offs. Because of this, a Fashion Copyright Bill, theInnovative Design Protection Act of 2012 (S 3523) (IDPA) was introduced to try to offer protection to high-level (read couture) fashion design. It died in Congress last year, but it is predicted that Senator Schumer will introduce it for a 7thtime in the next session. We’ll watch and see what happens.
Copyright is not the only way designers have attempted to protect their unique designs – Lululemon designs and produces pricy and popular fitness apparel. In 2012 it sued Calvin Klein, Inc. and its manufacturer G-III Apparel Group, Ltd for copying its patented waistband of its signature Astro Pant. This is another case we’re watching to see what happens or if it will just settle.
What about protecting colors in fashion?
Colors as trademarks have had a limited but interesting journey in US courts. Tiffany has a trademark on it’s unique blue that it uses on its packaging and marketing materials. Burberry has a trademark on its plaid design. What about red soles on a shoe? This was the top case in 2012 – Louboutin had a trademark on the red soles of its shoes. Yves St Laurent created a red shoe with a red sole and Louboutin sued for trademark violation. The court did not invalidate Louboutin’s redsole trademark but did limit it. The red sole trademark is valid for shoes that have a different top color – but YSL’s all red upper and sole shoe was not in violation.
The use of underage models and the connection to exploitation of a woman’s body is always a concern. Although employment of minors is regulated, it is highly controversial in the public eye.
What happens to a fashion house founded by a married couple when they get divorced? Who owns the name, the reputation, the fashions, etc.? This is the case of Tony and Chris Burch and the Tory Burch, LLC. They finally settled – undisclosed terms – but it created uncertainty in the market as to the future of that design house for a while.
Brazil seems to be a top international spot for design and fashion lawsuits – whether flip-flops (Brazilian shoe designerFernando Mello) or handbags (Birkin Bag counterfeits) – you see it all happen there.
And more – Gucci v Guess in terms of a shoe, Louis Vuitton v The Hangover Part II over a bag, Humphrey Bogart estate v Burberry for publicity rights for using a photo of him “claiming” he was wearing a Burberry trench coat, window décor lightning causing trademark confusion for Zoomp, and Dolce & Gabbana sues Dolce & Banana in South Africa – to name just a few of 2012.
So do you need a fashion attorney?
The above examples show the diversity and broad range of issues a fashion attorney can help you with. Protect your assets and your creations to the fullest extent permitted by law. Learn as much as you can and get a great fashion attorney on your team. It’s an investment that will keep returning on its own for the life of your fashion brand.
What have you created today?
Allen Johnston The Music Specialist
The Music Specialist’s mission is to provide foundations in the Entertainment Industry and in business academics that will enable our clients to advance the field of social entrepreneurship with the highest quality performances that both educate and entertain.