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April 26, 2009

Uniformly Detested, But Legal

In today's New York Times, the Ethicist takes on the question of whether it is OK to charge employees for their "invariably ugly" uniforms.  Unfortunately, his analysis goes a bit too far and gets the law wrong. 

Actually, brown doesn't do much for me.While Counterfeit Chic won't quibble with the conclusion that requiring workers to pay for hideous hats and horrible polyester shorts adds insult to injury, it is nevertheless usually legal.  Under the federal regulations implementing the Fair Labor Standards Act, employers may require employees to bear the cost of mandatory uniforms.  The only legal limit on this policy is the requirement that paying for the uniform cannot effectively drive the employee's pay below the minimum wage. 

In practice, this means that minimum wage employees cannot be forced to pay for items of clothing that they can't wear elsewhere, but other workers can be.  And all employees -- minimum wage or not -- can be required to provide their own clothing if the required items of apparel can be worn outside of work, as in the case of a restaurant server told to wear a white shirt and black trousers. 

Income tax law is consistent with employment law in this regard.  While an employee who pays for his or her own clothing may not deduct the cost of work clothes that (s)he could theoretically wear elsewhere, like a business suit, (s)he may deduct the amount paid for an article of clothing that is required or essential for work, is not suitable for personal wear, and is not in fact worn apart from work.  So go ahead and deduct the cost of that lab coat or giant team mascot head, but not your rain boots or long underwear -- as one taxpayer learned to his dismay. 

Having established that the Ethicist is mistaken with regard to law (despite quoting a lawyer), I should probably stop now and refrain from commenting on the ethics of the issue.  But who can resist a debate about fairness?

Is it really so awful to for a company to insist that employees pay for their own apparel just because they can only wear those particular items to work?  Admittedly, buying corporate logo gear may not be high on the list for that first paycheck, but many of us have clothes in our closets that are in practice for work only.  How many ties would the average man own if he didn't have to wear them to the office?  And yet he had to pay for all of them himself -- and can't even deduct the cost of these symbolic nooses. 

So while my sartorial sympathy goes out to J.M. in Arizona and anyone else whose employer requires a uniform that the employees don't want to wear, much less buy, the practice is ultimately neither illegal nor unethical.  

October 01, 2008

Spike this Heel!

This month your favorite law prof has been invited to guest blog at Concurring Opinions, a group site run by a number of fabulous colleagues from around legal academia.  Not to worry, though -- Counterfeit Chic won't be neglected.  And the occasional post may even be relevant to both sites.

So head over to Concurring Opinions now to find out why this Dior sandal, with what is reportedly a Masai fertility figure as its heel, is giving me a mental blister. 

 Christian Dior by John Galliano Spring 2009

September 25, 2008

Sabine Dresses

Some people steal brides.  Others steal bridal gown designs. 

Counterfeit Chic has discussed this knockoff nuptial dilemma previously, along with the measures that bridal emporia employ to evade copyists.  But really, banning photography and sketching?  Not exactly a pirate-proof strategy in the era of camera phones and the internet.  Now WWD reports that, without either intellectual property law protection or effective means of keeping design details secret from copyists, wedding dress designers are attempting to warn brides about the drawbacks of purchasing a knockoff.  The Watters website, for example includes a "buyer beware" tab explaing the dangers of unauthorized dealers who may not deliver the goods. 

Veiled warning 

Like brides themselves, bridal designers are particularly sensitive to being imitated.  Trademarks and brand loyalty are likely to be even less effective in encouraging consumers to eschew copies than in the case of other garments, as wedding gowns are an infrequent purchase and specialty labels may be unfamiliar.  Even La Liz has only had 8 opportunities to wear one -- and the rest of us can hope for what, 4 or 5 in a lifetime?*  In addition, quality of construction may or may not be important to a bride, as most gowns are worn only once -- at least by their original purchaser.  Weddings, moreover, are an expensive proposition, and a budget-conscious bride may be tempted to hunt for a less-expensive version of her dream dress.  Add in vicious trade show competitors who surreptitiously offer bridal boutiques cheap knockoffs, potentially preventing brides-to-be from even seeing the originals, and the market substitution problem becomes even more serious.  Especially since even a popular original wedding dress design is likely to have a limited run, as no bride likes to see her dress walking down every aisle in town. 

I'm reminded of a particularly awkward experience as a wedding guest some years ago.  At the reception, a fellow guest admired the (quite ordinary) dress.  Instead of accepting the compliment, the rather unlovely bridezilla -- an identical twin whose sister was to be married a few months later --screeched into a tirade about how her sister had asked to borrow the dress and how ridiculous it would be to see such a similar repetition of her day.  Having neither a twin nor a sister, perhaps I can't fully understand the depth of feeling involved.  And since I was a guest not of the bride but of the groom, who was never to communicate with his female friends again, I don't know which sister ultimately prevailed.  But I do have a sense that bridal clones are no laughing matter.  For the bride or her designer.

Another veiled warning 

*Note to my esteemed colleague and spouse:  Just kidding.  Probably.

September 18, 2008

Battle of the Baggy Pants

The fashion police have finally gone too far.

While towns from New Jersey to Louisiana have recently passed ordinances against the wearing of trousers that sag below the waist, exposing excessive skin or underwear, a Florida judge has declared his local ordinance unconstitutional as applied.  The case involved a 17-year-old arrested and held overnight after police spotted him riding his bicycle with 4-5 inches of his boxer shorts visible above the waistband of his pants. 

The style, which originated among men in prison who are issued ill-fitting clothing and no belts, was popularized by rap artists and the fans who emulate them.  Meaning that the baggy pants laws are targeted at a young, urban, male population.  Just take a look at the mug shots below, which include 8 of the 11 pants perps from Riviera Beach, Florida.  (Two of the others are juveniles, and a third was featured in a previous Smoking Gun post.) 

Notice any similarities?

 

Of course, this isn't the first time that a sartorial battle has stood in for larger social tensions involving race and class.  The WWII-era zoot suit riots in Los Angeles involved clashes between sailors and local urban youths, primarily Mexican-Americans but also African-Americans and others, who wore suits with extremely long jackets and baggy pants pegged at the ankle -- an extravagant statement in a time of fabric scarcity and rationing. 

A Riviera Beach public defender has indicated her office's intent to challenge the current sartorial restrictions.  So stay tuned for whatever boxer briefs are forthcoming.  (You were waiting for that, right?)

September 02, 2008

Copies Even a Lawyer can Love

Copies come in many varieties:  counterfeits, knockoffs, knockups, and DIY fakes.  In anticipation of Fashion Week, the editors of Time Out New York decided to experiment with yet another variety, which we might call custom reproductions -- or perhaps resurrections. 

What's a girl to do when she's worn her favorite boots, T-shirt, or bag to shreds?  Before Mom throws the threadbare item out or your best friend stages an intervention and refuses to be seen with you in that thing one more time, TONY's editors suggest finding an expert who can recreate your beloved rag in all of its youthful glory.  Be warned, however:  it won't be inexpensive.  And it may or may not be legal.

 

Consider J.Crew boots, originally $200 and reproduced for $1,500.  Or a no-name bag bought on the street for less than $30 and copied for $1,200.  It's hard for me to imagine having a $5 T-shirt remade for $140 -- but then, can you put a price on love?

In most cases, moreover, you won't have to spring for legal fees.  So long as the tailor avoids stitching a signature swirl across the pocket of your repro jeans, and unless the style of your recreated bag is so iconic as to constitute protected trade dress, U.S. law will not prohibit the copies.   (A hint regarding trade dress:  If an elephant stomps on your Kelly bag while you're on safari, just have it repaired.  It may be cheaper than dealing with Hermes' lawyers.)  Among TONY's choices, only the graphic on the front of the T-shirt could cause legal problems -- and, since it's vintage 1970s, only if the image were properly registered. 

But should the law have anything to say about these reproductions?  While friends in jurisdictions that have fairly long terms of protection for fashion might disagree, Counterfeit Chic is (for once) satisfied with the American status quo.  After all, it takes years to wear out an item so thoroughly that it has to be replaced, by which time the original designer will presumably already have recovered his or her creative investment and moved on.  And a consumer who loved an item to death will almost certainly look for a new one from the original designer before paying many times more for a one-off custom reproduction that may or may not hit the mark.  Some designers may be concerned about harm to their reputations from poor copies -- but it's highly unlikely that the truly obsessed custom consumer would settle for anything less than the best. 

Just be sure to give the original a proper burial -- and don't even think about salvaging that label to add a bit of illegal authenticity to the reproduction.

June 08, 2008

The Logic of Logomania

Ever wonder why vintage clothing has very few external logos, and then starting around the 1970s everyone seemed to slap initials all over everything?  (Well, with at least one exception:  Bottega Veneta bucked the trend with its signature intrecciato leather and the sly motto, "When your own initials are enough.")

A new biography, Being Armani, offers a reason for logomania -- the very one that Counterfeit Chic has long surmised.  In a passage from the book, the Italian designer describes his decision in the early 1980s to use his initials on designs for the Emporio Armani line:

I liked the eagle just fine, but I wasn't sure about my monogram on it, since I had always been a little finicky about the excessive use of monograms in the world of fashion, for instance, the craze for initials everywhere, from belt buckles to overcoat linings, and then taking them from the lining to the exterior, using it as a decoration on the clothing itself.  The problem was the growing phenomenon of copies, which were increasingly common.  The imitators were really good at it.  Sometimes I fall for it myself, and I would really have to look closely to see whether something was by me.  We needed a logo, even if it did not constitute a foolproof deterrent. 

In other words, absent protection for actual clothing and accessory designs, a clever lawyer somewhere realized that liberally deployed trademarks could serve as a stopgap measure, and the word spread.  Even Giorgio Armani, the most elegant of minimalists but also a clever businessman, succumbed to the lure of trademark protection. 

Of course, there are other reasons for using prominently displayed logos, including social signaling and aesthetic preference.  And emerging designers whose logos are not particularly recognizable or valuable can't deter copyists whose target is their designs, not their trademarks.  Still, it seems that logomania is what you get when the law has a lacuna -- and fashion designers cede their authority to trademark lawyers.

May 07, 2008

Weighing the Value of Law

Newsweek columnists Barbara Kantrowitz and Pat Wingert took the measure of two controversial laws aimed at weight, one a French proposal that would ban advocating "extreme thinness" (text here) and the other a New York City regulation that requires chain restaurants to post calorie counts.  Although the rules fall at opposite ends of the scale, their supporters share a belief that legislation can contribute to the battles against anorexia and obesity, respectively. 

As the article notes, your favorite law professor is skeptical about the wisdom of outlawing speech very likely to originate with eating disorder sufferers themselves. 

And as for prominently posted calorie counts, I recently noticed an accusatory 410-calorie sign standing between me and a Starbucks brownie.  Reader, I ate it anyway. 

April 24, 2008

It's Easy Being Green

Legally speaking, that is. 

Eco-friendly fashion has escaped the confines of shapeless, formless, colorless sack dresses and ugly earth sandals to become a major fashion trend, with cutting-edge retailers like Barney's New York shouting, "Don't Panic!  It's Organic!" and celebrities adding their names to labels that promise sustainable, recycled, natural, biodegradable, cruelty-free, fair trade fashion fixes.  With the text on some hang tags longer than an editorial in an alternative weekly and the British Advertising Standards Authority cracking down on unsustainable claims regarding "sustainable" cotton, Milwaukee Journal Sentinel reporter Lori Price asked your favorite law prof whether U.S. law offers any specific regulations regarding green clothing claims.

The short answer is no.  While agricultural products like cotton must meet federal standards in order to make specific claims, the law hasn't yet caught up with exactly what it means to be "green."  And while other industries like architecture and cosmetics are working to establish uniform standards, the fashion industry hasn't yet launched a similar effort.  As long as statements about clothing aren't actually false or misleading, a green label can refer to anything from raw materials to manufacturing to labor standards to, well, the color of the garment. 

If the eco-fashion trend lasts longer than the average trip down the runway, however -- something that would benefit manufacturers under pressure from cheap and allegedly eco-unfriendly overseas production -- the law is likely to have something to say about it.  After all, Kermit the Frog is always right in the end.

Thanks for the article, Lori! 

April 17, 2008

Too Rich or Too Thin

France is considering a law that would ban the promotion of "excessive thinness" -- and L.A. Times reporter Geraldine Baum was on the scene in Paris to find out what that might mean for the "pro-ana" websites and fashion-related advertising that the bill's sponsors would like to eliminate. 

As your favorite law prof discussed with Geraldine (alas, via long-distance call rather than a trip to the City of Light), addressing eating disorders is an important and laudable goal.  After the death in 2006 of a young Brazilian model, Ana Carolina Reston, fashion week organizers in several major markets adopted minimum BMI requirements for the runway, and others expressed concern about the issue.  The proposed French law would be largely unenforceable -- but it would make a strong public statement. 

In the U.S., such legislation would very likely run afoul of First Amendment free speech protections.  Unless and until science establishes a direct connection between fashion photos and eating disorders, the law can't stop individuals from advocating skeletal standards of beauty.  The government, the fashion industry, and the mainstream media can, however, encourage girls to reject starvation chic. 

You, too, can make a difference.  Just a few Euros per week will buy this young woman a baguette.  And not the Fendi variety.

P.S.  Seriously concerned about your health or that of a friend?  Click here for a helpline and more information. 

April 11, 2008

Stars and Stripes Forever

European fashionisti are buzzing about yesterday's European Court of Justice decision in favor of adidas and its famous 3-stripe logo. 

The German athletic apparel giant sued several competitors, including H&M, in Dutch court, alleging that their use of 2-stripe designs constituted trademark infringement.  Before ruling on the infringement question, the Dutch court asked the ECJ whether apparel designers' general need for access to such a basic design element -- stripes -- could be taken account in the infringement case. 

The ECJ's answer?  No.  Infringement is determined by whether there is likelihood of consumer confusion between the adidas mark and its competitors' versions.  If there is a clear connection in the public's mind between 3 stripes and adidas -- and there is -- arguments about the need to preserve general access to stripes are irrelevant.  The case will now go back to the Netherlands to allow the court to conduct a standard consumer confusion analysis. 

Wait!  Does that mean that no designer can ever again use 3 stripes, or 2, or 1 for that matter? 

Balenciaga Fall 2007No, not really.  Designers use stripes all the time without arousing adidas' anger -- take a look at this Balenciaga jacket from Fall 2007, for example.  So long as the stripes don't confuse the public as to whether the item is an adidas product, no problem.  And since adidas sells very few USD $2,000+ blazers in exclusive department stores, this isn't likely to become an issue.  As the company noted in a press release, "We do not seek to prevent the use of decoration, but the use of striped markings that confuse consumers, or cause them to make a link with our company and its famous trademark."

Presumably the military won't have to abandon sergeants' stripes, either.

Still, at least direct competitors in the sporting goods arena are likely to avoid striped logos going forward.  Could companies monopolize other basic design elements?

Don't panic yet.  A decade ago, Converse and the Dallas Cowboys famously sparred over a star, another basic design symbol that each was using as a trademark.  They both still own multiple registrations for a five-pointed star, albeit on different goods -- the football team doesn't seem to be in the shoe business.  And neither seems too concerned about YSL's spring accessories collection.

Converse (left) and Cowboys

YSL Spring 2008

The bottom line is that yes, a company's registration of a basic design as a trademark will create limitations on others' use of that symbol in ways that might be interpreted as indicative of the source of the goods.  But use of stripes or stars as mere decoration is fine unless consumers get confused. 

Most companies, moreover, don't select basic symbols standing alone as their logos.  Why?  Because it's too much work to create an association in the consumer's mind between parallel stripes or a single star and the source company.  It's much easier to just write your company name on the product and be done with it. 

The adidas case presents an interesting issue -- but not an immediate threat to the basic vocabulary of design.  Anyone attempting to imitate adidas' 3-stripe trademark, however, may find himself wearing prison stripes instead. 

P.S.  For more on law & stripes, click here.   And if you're a sneaker fan, don't miss the new book on Adi and Rudi Dassler and the fraternal feud that gave the world adidas and Puma.   

February 04, 2008

Live Fast: Halston at Internet Speed

HalstonThe morning after Halston's first fashion show, socialite Babe Paley showed up outside his studio seeking to purchase her favorite look -- immediately.  Now you can do the same.

The latest reincarnation of the iconic designer's label will appear on a New York runway at 2 pm today.  Tomorrow, online retailer Net-a-Porter will offer 2 of the looks, a daytime dress and an evening gown, with same-day delivery in New York and London and next-day delivery elsewhere.  In an industry where the 4-to-6-month gap between display and delivery has been under increasing pressure from consumers who have immediate access to Style.com, blogs, and television coverage, the plan is both revolutionary and inevitable.  No, it won't work for every look from every show -- the 2 dresses had to be chosen and manufactured in quantity beforehand, as yet too great a commitment to become standard practice for high-end items -- but it's a fabulous "what's next" moment.  And great PR.

Even better, it's an answer to the ubiquitous copycat problem.  WWD quotes Net-a-Porter founder Natalie Massenet:

"I am sure this will be a shock to the brands that specialize in knocking off some of the talent in the fashion industry,"  she added.  "They had their cake and have been eating it for a while, and we're now saying, 'We work with the brand to reclaim their ability to sell their product first.'"

Stefani Greenfield, co-owner of Scoop, NYC, concurs:

"For so long people have been knocking off and getting it out there and beating a designer that has to deal with craftsmanship, workmanship, and details that take time," she said.  "This allows the consumer to be part of our moment in fashion."

Presumably music to the ears of Harvey Weinstein, one of the current owners of the Halston name and no fan of fakes. 

By all accounts, the man born Roy Halston Frowick would've loved the idea, too.  Not only did he dress the stylish denizens of Studio 54, but -- following an idea that was well before its time -- he also created a line for J.C. Penney.  Although his mass-market move nearly destroyed the brand, as high-end accounts and clients fled the association, it was nevertheless a vision of the future.  Halston surely understood that instant gratification is always in style -- and what could be more modern than shopping for designer creations while wearing pajamas? 

January 22, 2008

Flower Power

According to an article in today's WWD, many designers' strategy for spring is unprintable.  Or nearly unprintable.

As a deterrent to knockoff artists, designer labels are relying on intricate and technically complex fabric prints and surface designs that would be difficult to replicate on the cheap.  In other words, it's no accident that everything's coming up roses -- and peonies, and lillies, and abstract modern blossoms beyond nature's ken -- for spring.   Reporter Alessandra Ilari notes:

[S]ince the new prints are immensely complicated, and, in many cases, hand painted, they're also increasingly a way for designer brands to differentiate themselves from the fast-fashion retailers -- and counterfeiters -- snapping at their heels. 

"One of the main reasons we have chosen to explore two-dimensional design and surface through embroidery is that it is very difficult to copy.  The labor involved is difficult and time-consuming, which makes mass producing and/or copying impossible," asserted Jack McCollough of Proenza Schouler.

Added Stefano Gabbana [of Dolce & Gabbana]:  "Though our creativity is never influenced by counterfeiters, whoever wants to copy this collection is in for a tough time." 

***

"We develop a lot of different versions of an idea, and when we do a print, the idea is to get it to our own stores as quickly as possible, so there is less of a chance of quick knockoffs," [designer Cynthia] Rowley said, adding that what distinguishes a real print from the knockoff is in the quality of the fabric.

Of course, original fabric prints and 2D decoration are subject to copyright, unlike the underlying clothing designs -- a legal protection that designers such as Diane von Furstenberg have successfully invoked against copyists.  But adding a few thorns among the roses isn't a bad idea either.

Dolce & Gabbana Spring 2008

Related posts:  Inimitable Intricacy, Pattern Recognition

December 17, 2007

What Not to Wear, Canine Edition

Fans of the U.S. television show What Not to Wear (yes, a knockoff of the British original) will recognize host Stacy London in her spinoff show, Fashionably Late.  Some of the red carpet gowns that Stacy recently featured may also look suspiciously familiar -- though the long-limbed models are of the four-legged rather than the two-legged kind. 

 

This isn't the first time that Counterfeit Chic has covered the Little Lilly canine couture copies -- or noted that while Lara Alameddine's doggie dresses themselves do not violate intellectual property laws, use of celebrity photos or an image of a trademarked award might.   

America Ferrer's Monique Lhullier gown and copy

Interestingly, despite the outcome of the widely publicized "Chewy Vuiton" case, American designers have thus far shown little interest in limiting knockoffs intended for pets.  The proposed Design Piracy Prohibition Act makes no mention of animal clothing in its definition of fashion designs, so presumably even an exact copy of a Shih Tzu's sweater or a poodle's poncho would be fair game after passage of the bill (apart from any logos or labels).  A canine version of a couture gown might might meet the test for determining infringement of the original, but it is by no means certain that the adapted version would be sufficiently similar to the original to trigger protection -- even if marketed as a copy. 

Perhaps the canine couture market is too small to attract attention, or perhaps our biological predisposition to favor neotenous creatures makes us unwilling to censure anything that makes adorable little dogs even more so -- at least the eyes of those who regularly match their pets to their handbags. 

But with all due respect to Ms. London's guest, Counterfeit Chic's four-legged friends appear to prefer wearing only their own original -- and fabulous -- furs.   

December 11, 2007

Cops and Robbers

Attention copyists:  You may find a warm welcome in the U.K. -- or in Kent, at least, where the good cops are also bad cops.  At least allegedly. 

Oh Baby London onesie - £21IP Kat reports that designer Hannah McHalick of Oh Baby London is suing the Kent Police over their use of the slogan "I've Been Inside for 9 Months" on baby clothes.  The police have responded that their product line is different because they use the word "I've" in addition to Ms. McHalick's claimed phrase.

While the Metro news article on the case didn't identify Oh Baby London's IP argument with any specificity, Jeremy Phillips at IP Kat doubts that the phrase in question would qualify as an original literary work under U.K. copyright law.  He also questions its use as a trademark.

But what if the case were considered under U.S. law?  While it's axiomatic that words and commonplace short phrases cannot be copyrighted, courts have occasionally found infringement in cases alleging reproduction of as little as a sentence fragment.  For example, there's Andreas v. Volkswagen of America, Inc., 336 F.3d 789 (8th Cir. 2003),  in which the voiceover of an Audi commercial, "I think I just had a wake-up call and it was disguised as a car and it was screaming at me not to get too comfortable and fall asleep and miss my life," was found to infringe the work of an artist who accompanied his drawing with the words, "Most people don't know that there are angels whose only job is to make sure you don't get too comfortable & fall asleep & miss your life."  So the Oh Baby London claim wouldn't necessarily be dismissed immediately, even if the majority of cases involving short phrases find that they are not in fact sufficiently creative to be subject to copyright protection.

Kent Police onesie £12And what about trademark, the natural IP home for short phrases?  I have to agree with Jeremy that there's some question as to whether Oh Baby London's "Been Inside for 9 Months" actually indicates to consumers the origin of the clothing, and thus qualifies for trademark protection.  Not every cute, marketable phrase is a trademark, in the U.S. or the U.K.  And yes, the phrase is descriptive -- or misdescriptive -- but of the baby, not the clothing.  Of course, all this might still leave Ms. McHalick with an unfair competition claim in tort law. 

And one other thing:  If Ms. McHalick is indeed successful in claiming protection for her clever turn of phrase, U.S. courts would be no more mollified than their U.K. counterparts at the Kent Police's addition of an "I've."

Whatever the outcome of the lawsuit, IP Kat is quite right that the cops in Kent need a bit of time on the inside...of an up-to-date legal hornbook.   

November 24, 2007

The Manolo's Guide to Holiday (Photo)Shopping

The Manolo and his elegantly shod readership have most graciously sent Counterfeit Chic a real turkey -- and not the tasty Thanksgiving variety. 

Yes, it's Steve Madden.  Again.  It seems that Mr. Madden, not content with pilfering Christian Louboutin's elegant shoe designs or signature red soles, may have turned to stealing photos of the master's shoes as well.  Compare Saks' picture of the Louboutin "Miss Fred Tacco" (left) with the Madden "Becks":

Which convinced you -- the identical patent leather reflections, the perfect camera angle, or perhaps the suspiciously similar shoelaces?  Although the background and red soles appear to have been erased, you are presumably not fooled by the many-colored wonders of Photoshop -- and nor is the law.

Steve Madden Becks in blue, red, and cognac

True, M. Louboutin's talented hands are probably tied, at least with respect to intellectual property law.  U.S. law does not protect his designs, and while he has applied for a trademark on his red soles, Steve Madden has finally learned not to copy that presumably protectable element. 

U.S. copyright law, however, has a thing or two to say about commercial misuse of a photo.  Assuming that the Becks shot is merely an unauthorized, altered version of Miss Fred Tacco's best angle, the owner of the copyright in the photo has a cause of action against Steve Madden.  That copyright holder could be the original photographer, or Saks Fifth Avenue, or even Christian Louboutin himself in the unlikely event that he supplied the photo. 

The fact that an image has been substantially changed does not eliminate the the cause of action in copyright; it merely turns the offending imitation from an unauthorized copy into an unauthorized derivative work.  And while copyright law includes substantial provisions for fair use, no lawyer who can spell "copyright" (that's "right," not "write" or "rite") would argue that taking one online catalog photo for use in another catalog fits the criteria. 

But what if the photographer were a freelancer who cleverly kept the copyright in the photo and licensed its use to both Saks and Steve Madden?  In that unusual scenario, there would be no cause of action in copyright.  It could still be considered fraudulent, however, to picture one item for sale and then substitute another.  As the Manolo muses, "this leaves the Manolo wondering exactly what the Becks looks like."  Not, of course, that our fashionable friend has any intention of finding out.

Bottom line:  Christian Louboutin cannot stop Steve Madden from copying his coveted designs.  Yet.  But the mere click of a shutter created an image that has infinitely more legal protection that the pictured shoe itself, and the copyright holder may not appreciate its reappearance elsewhere.  Moreover, it's not nice to fool potential customers with false representations of the goods.  So, legally speaking, Steve Madden may have stepped in it once again -- and his lawyers had better put down their Thanksgiving forks and pick up their pens. 

Many thanks to His Superfabulousness for sending the link, and to eloquent reader Victor Ramirez for asking Counterfeit Chic to comment on such "tomfoolery."

Continue reading "The Manolo's Guide to Holiday (Photo)Shopping" »

October 30, 2007

Inimitable Intricacy

Last month, Counterfeit Chic noted that -- in the absence of U.S. legal protections -- some designers manage to evade mass copyists by creating looks that are too difficult or too expensive to imitate. 

Now Cheryl Lu-Lien Tan at the Wall Street Journal reports that the technique has become a trend, with this season's creative tailoring and luxurious fabrics posing a challenge to would-be knockoff artists.  Deliberate diversion or bonus by-product?  Apparently there's stylish strategy at work:

Graeme Black, who recently stepped down as chief designer of womenswear at Ferragamo to focus on an eponymous line, says part of his goal in creating cocoon-shaped coats and jackets with draped collars and puffy sleeves for both labels was to set them apart from mass-market styles.

How do these differences translate to actual garments?  The WSJ asked an expert, who noted that while this season's celebrated leg-o'-mutton sleeve at Lanvin (left) relies on quality fabric and careful stitching to maintain volume and symmetry, the loosely woven fabric and pintucks on a similarly shaped sleeve from H&M (right) result in a limp look. 

In other words, sometimes you get what you pay for.

P.S.  Thanks to Chris Hoofnagle -- who has a very long memory for scholarly interests -- for the tip! 

October 04, 2007

Sticking It to 'Em

Sheet of counterfeit Lacoste alligatorsKids love stickers.  Geek kids use them to decorate notebooks, slacker kids use them to personalize skateboards, and jock kids add them to football helmets. 

Some adults love stickers, or their embroidered equivalent, too.  Especially since certain add-ons can turn generic, legally imported merchandise into far more lucrative lucrative counterfeit goods. 

WWD's Ross Tucker and Liza Casabona report that with the crackdown on counterfeit goods at U.S. borders, there is an increasing trend among counterfeiters toward bringing in unlabeled knockoffs and adding the fake labels and logos stateside. 

This practice of finishing goods in the U.S. in order to evade anticounterfeiting enforcement activities isn't new.  Even at the point of sale, it's not uncommon to buy an unlabeled fake and have the seller stick on a fake logo afterwards.  I've regularly mentioned this practice as one reason among many that a law against design piracy makes good sense -- why should the government spend time and money on other anticounterfeiting legislation if enforcement can be so easily evaded?  In the absence of laws against copying designs, however, smart counterfeiters are apparently taking ever greater advantage of their ability to import unlabeled goods, manufacture the small and easily hidden labels locally, and bring the two together when the coast is clear. 

Of course, not all counterfeiters are particularly good at this sleight of hand.  Some get caught with stacks of fake labels or rooms full of embroidery machines.  Others simply can't match the label with the product.  Every now and then online auctions include Burberry plaid handbags with Kate Spade labels, for example, or a mixed tangle of Prada and Chanel charms.  My personal favorite is a dead ringer for a black Fendi "B" bag -- with a triangular metal Prada label stuck right in the middle. 

All of which gives a whole new meaning to "sticker shock." 

September 28, 2007

Pattern Recognition

Burned by the lack of protection for fashion designs under U.S. law?  Try slapping a giant logo on your creation (for trademark protection) or replacing solid color fabric with a print (copyrightable by the fabric designer). 

Or, if your vision calls for elaborate draping and complicated construction -- and your customers have deep pockets -- stay one step ahead of the copyists with designs that are simply too difficult or too expensive to replicate on the cheap. 

Of course, such technical sophistication doesn't come easy, especially when it comes time to put finely tuned figments of the design imagination into real life production.  That's why designers call upon expert patternmakers like Nicolas Caito, featured in the September issue of Elle, to realize their visions.  The article notes:

[W]hen Peter Som wanted to create a snail-like ripple in the center of a cocktail dress for fall, he, too, called upon Caito, this time to help grapple with the twisted seams.  "I realized we had to bias-cut the fabric to get the shape of the wave that Peter had in his sketches," Caito says, pointing out that in today's age of cheap copycat couture, the designer's commitment to such artisanal detail is rare. 

Luckily for designers who can afford Caito, patternmakers with his training and experience are also rare.  Copyists aren't known to invest in technical expertise or design innovation -- leaving Som's creation safe, for now.  

Despite the ubiquity of fast fashion, it's nice to know that there's still time for a "snail-like ripple." 

Peter Som - Fall 2007

P.S,  To see the work of another emerging designer whose elegant techniques have been described as too sophisticated for mass market copyists -- though she's had some suspicious visitors -- go to Kelima K's website or visit her Nolita boutique. 

September 16, 2007

Critical Mass 3

Once again, as the dust settles in New York and the fashion scene shifts to London, Milan, and Paris, Counterfeit Chic features the fashion editors and critics whose prose upholds the social norms against creative designers copying one another too obviously.  In other words, here's a look at how the press does the work that U.S. law will not -- so far. 

For the Spring 2008 season, the New York Times' Cathy Horyn offered a "demerit" to the Proenza Schouler boys, who despite their "talent and charm" suffered in her opinion from "a detectable Balenciaga influence" that "cast a degree of doubt over the designers' ability to establish a clear brand identity."  (Then again, who hasn't been influenced by Balenciaga over the past couple of seasons?)

The most vituperative comments were reserved for Marc Jacobs, whom both the International Herald Tribune's Suzy Menkes and the Washington Post's Robin Givhan took to task for making them wait over 2 hours -- until after 11pm -- for a derivative show. 

In Givhan's words, "Most disappointing was that Jacobs spent a significant amount of time merely repeating or paraphrasing what designers such as [Rei] Kawakubo [of Comme des Garçons], [Martin] Margiela and the Dutch team of Viktor & Rolf have already said aesthetically." 

Menkes concurred, adding that the "magpie collection was vaguely comprehensive to fashion buffs because it was an echo chamber of existing ideas from John Galliano's haute romantic 1920s ladies to Jacobs's own foraging in the vintage closet." 

So incensed was Jacobs by the criticism that he fought back with a call to WWD, in which he not only addressed rumors regarding the reason for the late start but also defended himself against charges of copying.  In his words:

I've never denied how influenced I am by Margiela, by Rei Kawakubo, those are people that inspire my work; I don't hide that.  For her [Menkes] to turn this into this hate fest for me and my collection I think is ridiculous....I expect people, whether we're two hours late or two hours early or we don't show at all, to look at what they see:  the clothes.  Of course there are comparisons to other things.  I'm a designer living in this world who loves fashion...I'm attentive to what's going on in fashion, I'm influenced by fashion, that's the way it is.  I have never ever hidden it.  I have never insisted on my own creativity, as Chanel would say.  I have my interpretation of ideas I find very strong.  Jil Sander is influenced by Comme des Garçons, Miuccia Prada is influenced by Comme des Garçons, everyone is influenced by Comme des Garçons, Martin Margiela.  Anybody who's aware of what life is in a contemporary world is influenced by those designers.

Jacobs has a point:  influence is one thing, imitation is another.  On the other hand, writers like Menkes and Givhan have significant experience at telling the difference -- and when it comes to upholding fashion's creative standards, they're not afraid to wield some influence of their own.

Related entries:  Critical Mass, Critical Mass 2

September 11, 2007

Frontier Justice: Anna Sui takes aim at Forever 21

Watch out, Forever 21.  There's a new sheriff in town. 

Anna Sui, one of many designers lining up to accuse the fast fashion chain of copyright infringement (complaint here), has moved the fight onto her own territory -- creativity.  Guests at her Spring 2008 runway show received parchment-colored T-shirts with "Wanted" posters depicting Forever 21 founders Don and Jin Chang, a.k.a. "Don Cassidy and the Sundance Jin." 

Anna Sui also took the opportunity to remind the Bible-quoting defendants, who print the phrase "John 3:16" on their shopping bags, that Christianity actually comes with its own legal code.

But I'd like to think that Anna took particular pleasure in drawing mustaches on her alleged copyists.  Waiting for the legal system to respond is all well and good, particularly when there's a strong cause of action and a notorious wrongdoer on the stand.  In the meantime, a bit of humor hits the mark.

Nice shooting, Ms. Sui.

P.S.  For another designer's Fall 2006 Fashion Week commentary on copying , click here.  If you can't beat  'em, mock 'em. 

September 04, 2007

Copying Clothes Over a High-Speed Connection

What would life be like without the mixed blessings of the internet?

In today's New York Times, Eric Wilson goes behind the scenes at Simonia Fashions, one of many companies waiting for the first photos from New York Fashion Week to appear online.  Not because the proprietors are interested in fashion's new creative direction, mind you, but so that they can pick out the most popular designs and get cheap copies into stores -- often before the originals are available for sale. 

Naturally, the retailers selling the knockoffs disclaim any actual knowledge of copying, pointing back to their suppliers as the source of the controversial clothing. 

In the U.S. all of this occurs without interference from any of those inconvenient intellectual property laws that might actually protect creative fashion designers.  Interestingly, the company featured in the article outsources its manufacturing to India, where design protection does exist.

It's enough to make one long for the good old days days of rough pencil sketches and descriptions sent via telegraph.

Tory Burch (left) and Simonia Fashion's Blue Plate special (right)

Bonus point:  Who is the "expert working with the designers’ trade group" who in the article offered a rock-bottom, minimum estimate of the percentage of knockoffs in the apparel and accessories market?  You guessed it.  And just for the record, since some of you have asked, I do not now nor have I ever represented the CFDA; all of my opinions are my own and are the product of my academic research.  All of my work on this issue, moreover, has been pro bono -- both in the literal sense of "for the good" and in the more colloquial sense of "free of charge." 

August 13, 2007

Once Bitten, Twice Shy

The Senate version of the Design Piracy Prohibition Act, S1957, has only just been introduced, but it's already having a deterrent effect.

Anna Corinna USD $384-480, Bitten $9.95

After the New York Times illustrated Eric Wilson's article on the bill with an original Anna Corinna "City Bag" (left) next to a near-identical but much cheaper "City" bag by Sarah Jessica Parker's Bitten line for Steve & Barry's, the guilty retailer hastened to apologize.  WWD quoted from its statement:

A prototype of a bag Sarah Jessica Parker and the Bitten design team never approved for production was inadvertently produced by Steve & Barry's.  When the error was discovered, production of the bag was immediately stopped.  It was never put on sale at Steve & Barry's stores, and images of it were eliminated from all marketing materials.  This unfortunate incident has resulted in Steve & Barry's examining its entire production process and making appropriate changes to help ensure this type of error doesn't happen in the future.

Is Steve & Barry's sincere, or is SJP just trying to avoid the bad publicity garnered by other celebrity copyists?  Time will tell.

For the moment, however, the blogosphere is watching.  The suspicious similarity between the bags was originally noted on Fops and Dandies (after a picture of the Bitten version appeared on NYT fashion critic Cathy Horyn's blog)  then republished by Fashionista before being picked up by the actual print edition of the Times.  Nice catch!

July 10, 2007

Don't Be a Knock-Off Nigel

Is laughter a useful counterpart to law in effecting social change?  The UK Industry Trust for Intellectual Property Awareness thinks so -- and has created a hapless character named "Knock-off Nigel" to be the butt of its campaign. 

Here's one fairly traditional public service announcement (all fun & games 'til the lesson at the end)featuring the "shabby, pub-going rogue" and the sale of fake DVDs: 

And a more lighthearted musical interlude at the pub, in which an abashed Nigel is accused of everything from buying knockoff DVDs to giving his girlfriend a watch he found on the street.  Apparently Nigel is not just fond of fakes but a real cheapskate, the kind who never buys a round of drinks, etc. 

With Nigel-related quips on everything from commercials to beer coasters, the Industry Trust is hoping that he will become a stock character and that social stigma will attach to his piracy-promoting activities.  Of course, not everyone approves.

UPDATE: And still more from Madisonian.

June 13, 2007

C & D

With prints back in fashion and knockoffs in the news, the fashion community has begun to keep an eye out for suspicious sartorial similarities.  Check out these contributions from nitro.licious, Fashionista, and Fashion Theory, respectively:

Anna Sui v Forever 21

Tibi v Mandee

Marc by Marc Jacobs v Forever 21

And now the legal question:  If the original dresses (left) were subject to design protection in the U.S., as they are in Europe and Japan and as proposed in the recently reintroduced Design Piracy Prohibition Act, would the copies infringe that protection?

Answer:  No.  The dress designs as a whole weren't copied; only the fabric patterns are the same.

Q:  So these copies are legitimate?

A:  No, I didn't say that.  If they're actually copies, they may very well violate the U.S. law as well as that of other countries.  The question is, which type of law?

copyrightEach of these fabric prints may qualify for copyright protection, in the U.S. and pretty much everywhere else.  That's how DVF could bring her much-discussed lawsuit against Forever 21.  New legislation won't change that in any way.  Just like images created with ink on paper or paint on canvas, prints created with dye on fabric are subject to copyright protection -- and have been under U.S. law for over half a century.

Much of the time, however, this copyright is held by the company that created the fabric, not the designer who created the garment.  Some designers sell a large enough volume and are successful enough to design their own prints on a regular basis, in which case the designer holds the copyright, but most designers simply purchase material from fabric mills.  If the order isn't large enough to be exclusive, this can result in 2 designers using the same fabric -- just as if 2 individuals went to the same store and bought a few yards each from the same bolt of fabric.  This isn't noticeable if the fabric is, say, black wool crepe, but printed cotton is another matter. 

If the prints on the left were created by the designers of the original dresses (presumably Anna Sui's claim, since she's brought a lawsuit against Forever 21), then the copies may very well infringe copyright.  If, however, the printed fabrics were simply bought from the same source, no problem.   Another possibility is that the fabric prints were copied but are in the public domain, like older vintage works -- again, no problem. 

Whatever the story with these particulalr fabric prints, the original garment designs cannot be protected in the U.S.  Of course, in these examples the garment designs weren't copied, so the question of infringment would in any case be limited to copyright in the fabric prints (or possibly patent, but that's another matter). 

designWhat design protection offers is the ability to protect not just the print, but the overall design of the garment.  The idea is to give fashion designers rights to protect their designs.  At the moment, fabric designers get protection in the U.S., while fashion designers don't. 

In other words, if our intrepid fashion bloggers are correct, then the copyists responsible for the images on the right aren't exactly legal luminaries.  They engaged in unauthorized duplication of the only protected part of the original dresses -- the fabric prints -- while ignoring the unprotected garment designs. 

Call in the lawyers -- it's time to send out the C&Ds. 

June 03, 2007

Turning a Cold Shoulder to Knockoffs

Someday, academia will finally take fashion seriously.  This will result in a great deal of valuable social and cultural history, along with dissertation titles like, "On Her Shoulders:  Silhouette and the Re-Construction of Western Women's Economic and Political Power."  

Balenciaga S'07, Lanvin F'07, Margiela F'07

Until then, we must be content with well-researched newspaper articles like the one by Rachel Dodes and Teri Agins in this weekend's WSJ, which notes the return of the "strong" shoulder to women's fashion after nearly 20 years on the "out" list. 

Ms. President?Although it's possible to overread the social significance of any individual fashion statement, the return of the exaggerated shoulder seems appropriate at a moment when for the first time there have been serious woman presidential candidates in both France and the U.S., Germany has a woman chancellor, a woman leads the U.S. House of Representatives, etc.  At the same time, the rights of women around the world are under close scrutiny and dress is at the heart of global cultural warfare

Gibson GirlAs Dodes and Agins point out, wide shoulders have been fashionable in the late 1890s and early 1900s (first-wave feminism and suffrage), the 1940s (women working while men were at war), and the 1980s (women entering the workplace en masse, this time to stay).  (The sartorial echoes of this exercise of economic and political muscle are, of course, quite different from dressing to express sexual liberation through raised hemlines, low waistlines, and still lower necklines.) 

Lest this year's broadening of the female shape to more masculine proportions raise the spectre of assertive "power dressing" from two decades ago, however, the designers and retailers interviewed for the article hastened to explain away any direct connection.  Not only are the new shoulders actually "less severe and aggressive than in the past" and more "modern," they also are justified as an exercise in fine tailoring, a natural counterpoint to emphasizing the waist, and, Counterfeit Chic's favorite, a deterrent to design pirates:

One potential side benefit: The shoulders' complicated constructions make them harder for fast-fashion chains to copy.

And yes, they do make the hips look smaller. 

May 26, 2007

Designer Baby

"Armani was like any other baby, right down to his daily bottle, red stroller, Huggies diapers -- except for a hole cut out for his tail..."

Designer Giorgio ArmaniNo, the Washington Post isn't reporting a reality-based twist on The Devil Wears Prada.  The Armani in question is not the Italian designer -- who is NOT rumored to have a tail -- but his simian namesake, a capuchin monkey accused of being an illegal resident of Rockville, Maryland. 

The monkey's owner, Elyse Gazewitz, claims that she purchased him before a state law forbidding ownership of certain wild animals took effect last year. 

Could her choice of name for little Armani raise a different kind of legal objection, however?  As trademarks comprise an ever-increasing part of our cultural vocabulary, naming pets and even children after brands has become a common practice.  Could this trend constitute a violation of trademark law?

Happily for all the poodles named Chanel and pugs named Bentley, trademark infringement (including dilution of a famous mark) can occur only if the name is used in commerce.  So unless Ms. Gazewitz intends to become an organ grinder and thus in need of a traditional capuchin monkey to solicit donation from passers-by, Armani's name -- if not his residence -- is probably safe from legal threat. 

Then again, Armani's legal defense looks to be fairly expensive...

Organ grinder and monkey

May 02, 2007

Art Imitates Life

Non sequitur

April 20, 2007

Name 'Em and Shame 'Em

Legal systems are predicated on the basic idea that dispute resolution and the righting of wrongs is better achieved through peaceful adjudication than, say, punching the other guy in the nose.  The downside is that the ostensibly civilized path to justice can be an expensive and time-consuming one, and not every ethical wrong is as yet protected by a legal right. 

Enter, then, the court of public opinion, where judgment is at least swift -- especially on the internet. 

Urban Counterfeiters is one such venue, dedicated to "bringing American consumers reports from small companies and artists who have been taken advantage of by large corporations."  (See also previously featured site You Thought We Wouldn't Notice....)  As you might expect, the Urban Outfitters chain ("the Wal-Mart of cool") is among UC's targets -- and has been subjected to not only online disapprobation but old-fashioned in-the-flesh protest and pamphleteering as well. 

Crownfarmer and Urban Outfitters shirts

Could the T-shirts designs and other original creations on the site have been protected by copyright or perhaps trademark law?  In many instances, yes.  But in the meantime, a bit of (judiciously exercised) extra-judicial action certainly sends a message. 

Many thanks to my engaged and engaging student James Creedon, Fordham law library guru Larry Abraham, and above all Anonymous for making sure that I finally posted this one!  And don't forget to head over to Murketing for further reflections on the subject. 

April 12, 2007

Counterfeit Coffee Break 4

Vacationing in Germany anytime soon?  If so, take a break from cathedrals, museums, and beer to visit the Plagiarius Museum outside Cologne, an entire institution dedicated to "innovation contra imitation." 

Among the institution's programs are the annual Plagiarius Awards, given to blatant copies of designed objects, frequently German originals.  The museum reports that some companies whose knockoffs have received the dubious honor have been deterrerd from future production or embarrassed into seeking licensing agreements.  The moral (because German folktales always have a moral):  Even if you can't bring a lawsuit, you can always name 'em and shame 'em -- especially online.

Among the 2007 award "winners" is the perfect pot for your counterfeit coffee break, originally by alfi and knocked off by the He Shan Jia Hui Vaccuum Flask & Vessel Co.:

And if you plan to do a bit of shopping during your visit, perhaps the museum will offer an original Reisenthel Accessories basket knocked off by, well, everyone (thus prompting the new Hyena Prize, presumably for copyists who hunt in packs):

Counterfeit confession:  When I first ran across a report of this museum, I thought it must be an April Fool's joke.  (Context is everything.)  Many thanks to my fabulous and fashionable student Suzana Carlos for setting the record straight!

April 08, 2007

No Pictures, Please!

Designers frequently complain of uninvited photographers snapping pictures at trade shows and in retail venues, presumably with intent to copy the designs.  Some concerned stores, in an effort to protect their investments as well as their designer sources, ban in-store photography altogether.  One millinery expert, however, says that it takes more than a photo to make a knockoff hat -- or at least a "decent" one. 

So put on your Easter bonnet, head out to the closest parade, and smile for the cameras!

Philip Treacy couture hat 2000

Happy Easter!

February 19, 2007

Critcal Mass 2

The fashion flock has left New York and passed through London on its way to Milan and Paris, so it's high time for Counterfeit Chic to gather up a few Fall 2007 copying-related comments from sharp-eyed fashion critics, editors, and others:

Derek Lam Fall 2007

The New York Times' Cathy Horyn and International Herald Tribune editor Suzy Menkes saw ghosts of Alaia everywhere (as did others, particularly at the Derek Lam show).  As Horyn noted:

About the only designer in New York who doesn’t attempt to resuscitate the dead is Narciso Rodriguez. I mean, if I see another Adrian, Mainbocher, Alaia or quietly finessed McCardell look…

Menkes went one step further, writing off the New York season almost entirely:

Ultimately, the New York shows remained stubbornly grounded, for instead of soaring to a new place, the collections were often tied to a retro futurism that took off with a Balenciaga show one year ago.

WWD reported on the response of Pierre Berge, Yves Saint Laurent's longtime partner, to the YSL references in Marc Jacobs' collection:

"It's true that it's inspired by Saint Laurent," Berge mused.  "But it lacks the great precision of Saint Laurent."  Pausing, he added, "Still, it's better to be inspired by Saint Laurent than by John Galliano!"

Writing for Daily Fashion Report, Marilyn Kirshner described Michael Vollbracht's program notes for Bill Blass, which astutely headed off any charges of copying by acknowledging his sources in advance:

Several outfits were described as "Halston-like" or "Norell-like" and in his program notes, [Vollbracht] explained why he is "obsessed with the two legends."  As he put it, he "fell in love with his (Norell's) sequined mermaids years and years ago when I was a very young designer."  And Halston?  "Because his simple philosophy looks so good in this era of over-designing."  And he continued:  "And of course Blass - because it is my job to knock him off."  Michael not only has a sense of humor...but he's honest.

It would appear that copying is a dangerous game, at least when it comes to the critics, but "homage" may get the benefit of the doubt.

Perhaps my favorite comment, though, came from Valerie Steele, director of the Museum at F.I.T.  When I ran into her at the Barneys party for the relaunch of the late Madeline Vionnet's label, she immediately reminded me that Vionnet herself had waged an ardent campaign against copying.  Good thing that the house's new design director, Sophia Kokosalaki, is doing a beautiful job! 

December 06, 2006

Leave it to a Hip Hop Artist...

...to creat an anticounterfeiting campaign that rhymes.

Sean Jean Canada, Diddy's north of the border division, has launched a "Don't Buy a Lie" campaign to combat the brand's "copycat crisis."  Click the logos below to visit the website, complete with musical interlude.

The best detail?  The dateline on the press release reads "St-Laurent, Quebec."  No relation, of course. 

November 20, 2006

The Liar's Paradox

The Cretans are always liars.

--Epimenides

(A Cretan philosopher, of course.)

The trademark version of this classic logic puzzle, along with very possibly the perfect final exam question, has been posted by Frederic Glaize at Le petit Musee des Marques.

A trademark of the word "COUNTERFEIT" -- for clothing and accessories, no less? 

Setting aside conundrums of registrability (and yes, there's an English-language U.S. counterpart), imagine a "COUNTERFEIT®" handbag that is allegedly counterfeited by another handbag maker and clearly labeled "COUNTERFEIT."  Which is the real counterfeit?  Exactly.

Bill Cunningham for the New York Times December 5 2004

Bonus point:  What iconic starship captain was a master of using the liar's paradox to attack unfriendly artificial intelligences?

October 31, 2006

Horror Story for Halloween

Blood-thirsty vampires and flesh-eating zombies are all part of Halloween's faux terrors, but there are far worse monsters out there.

Take the copyright infringer who has stolen Kathleen Fasanella's book, for instance.

Many of you know Kathleen as the intelligent and informative author of Fashion Incubator, a wonderful website dedicated to patternmaking (Kathleen's professional expertise) and related topics.  She's also a generous soul who gave me a warm welcome to the blogosphere when I first began writing Counterfeit Chic.  What many of you may not know -- I certainly didn't -- is that Kathleen's website is supported by her book, The Entrepreneur's Guide to Sewn Product Manufacturing

Now it appears that a persistent copyist has taken not just sections of Kathleen's book, but the whole thing, and is selling allegedly "used" copies online at deeply discounted prices.  Kathleen has been fighting this problem for some time.  Now her sales have dropped by 90%, and as a result her site is in danger.  Read the whole story here -- and then buy a copy of the book from an authorized seller.

What good is intellectual property law if it can't stop horror stories like this one?  This isn't a squabble over sampling a few notes of a song or sharing an essay with a handful of friends.  It's wholesale theft, and a direct threat to Kathleen's ability to continue her work.

The truth is that law -- whether we're talking intellectual property or any other area -- is something of a luxury good.  Having rights is one thing; having the means to enforce them is another. 

October 17, 2006

Boing Boing Splat

Heather Ross for Munki Munki - Pool PartyToday BoingBoing unleashed a screed against Reprodepot, an online store offering a particular printed fabric under what was essentially a limited license.  This turned into a general rant about intellectual property, with accusations ranging from an analogy to feudalism to the oppression of physical laborers.  And all without being able to spell “copyright.”  (Or was the heading “Coprygihted fabric” deliberate?)

Now while screeds are not particularly Counterfeit Chic’s style, the internet is certainly a medium that encourages hasty statements.  This is fine – except when portions of them are substantially incorrect or misleading.

So just to clarify, now that the dust appears to have settled:

Fabric designs are subject to copyright under U.S. law.  This was not always the case; however, in the mid-twentieth century courts quietly decided that printing on paper and printing on fabric were legally indistinguishable, and thus allowed original fabric patterns (printed or woven) to become part of the domain of copyright.  In addition, some original fabric patterns qualify for design patents.

The copyrightability of fabric designs, however, has little to do the legal legitimacy of Reprodepot’s statement regarding Heather Ross’s “Pool Party” design for Munki Munki, which was apparently as follows:

Please note: This fabric can be purchased for personal sewing projects only. This print cannot be used for items made for resale.

While statements like this license are often used in conjunction with the sale of, among other things, software to secure certain rights to the seller, these rights are separate from the intellectual property rights associated with the goods.  In other words, a license is a private contractual agreement, not a property right granted by the government.  And private parties can place a wide range of restrictions on many types of property at the time of sale – e.g. “You can buy my house, but only if you agree to keep it painted pink.”  If the buyer chooses to accept the restrictions, fine; if not, the buyer is free to look elsewhere.

The use of licenses to create additional restrictions on intellectual properties (again, think software) has drawn a great deal of fire over the past decade, which is probably why BoingBoing reacted so strongly to this one.  A limitation placed on the sale of fabric, is hardly evidence of the great evils of the intellectual property system. 

In fact, it turns out that Reprodepot had a specific reason for the limitation:

We had added that disclaimer for that particular item years ago because the person who designed it is a friend of ours and she had a business manufacturing children's clothes using this fabric (among others) that she had personally designed. We are selling the overruns from that business.

Years ago, we had had a problem with a few people making children's clothing with her fabric, and selling them on Ebay while using her company's name which was hurting her business. The text was posted specifically as a deterrent to those people.

As a result of the BoingBoing post, however, Reprodepot now believes that its statement was unenforceable and has reworded it as a request.  That’s fine if it better reflects the seller’s intent, but the statement actually was enforceable as a legal matter (if not as a practical one).

And one other thing.  BoingBoing’s post claims that “selling textiles has been around for millennia” and seems to blame creeping IP protections for any sort of limitation on their marketability.  However, sumptuary laws (governing the consumption of luxury goods, including clothing and textiles) have also been around for millennia, so the “good old days” before IP weren’t quite what the post would seem to imply.

All of which leads to a caveat:  Many of us have formed our opinion of the IP system – and property rules in general – by reference to new digital media and to the aggressive enforcement practices of certain IP owners.  But just because we object to certain expansions or uses of IP doesn’t mean the entire concept of allowing creators to own their own work is evil.  In fact, open source licenses are based on the idea that authors own their work, and may choose to release it into the public domain subject to restrictions of their choice (including noncommercial use, the type of restriction originally placed on the fabric for sale here).  In industries where there is healthy competition, if you don’t like the restrictions placed on one thing, you can always buy another.  Or create your own.

October 13, 2006

Parodying Prada

All clothing is expressive; printed T-shirts just make their points that much more explicitly.

In an elegant photo posted on Flickr, complete with dark self-reflection, mgonamission captures a parody of the Prada label.  The message?  "Frada:  Where high fashion meets low finance." 

For additional logo parodies, and an anti-consumerist manifesto, see Mark of the Beast (courtesy of my Fordham law student Kevin Bodenheimer). 

September 28, 2006

Ready for My Close-Up

Hollywoodtown, here I come!  Many thanks to Stephen Galloway of The Hollywood Reporter, Esq.  for his smart and stylish article, "Fashion Police," in this week's issue -- and for dubbing your humble blogger "The Legal Fashionista."  (I'm sure some of you won't let me forget that one for a while!)  Although Stephen declines the title of "fashionista" for himself, he tells me that he wore a Varvatos jacket for our telephone interview, so he certainly knows his threads.  And his words. 

And now, if you'll excuse me, I have to powder my prose before the next take. 

September 19, 2006

Critical Mass

Law enforcement can't do it.

Many retailers won't do it.

The U.S. Congress hasn't tried to do it -- yet.

But the sharp pens and sharper tongues of fashion critics are working hard to reinforce the social norms against copying within the fashion design community.  While designers are legally free to copy one another's work, at least in the U.S., doing so runs the risk of harming a designer's reputation.  The fashion press celebrates new looks or the fresh expressions of an established designer's signature style, but woe to the previously celebrated designer who borrows too liberally or literally from another. 

Consider the following reputational slaps on the wrist during the recently concluded New York Fashion Week:

Calvin Klein Spring 2007From WWD:  Guests at Calvin Klein didn't realize they were in for a ride, but on Thursday, Francisco Costa charted a direct course for Helmut-land.  He opened with several subtle dresses layered in wafting gauze, but the unsubtle nature of his homage to Helmut Lang was stunning.  From the show space to the clothes themselves, Costa echoed a very specific phase in Lang's career:  his artsy, ethereal stage.  Dresses fluttered with too-familiar streamers and were cut in a very distinctive palette that had some wondering aloud if Helmut's longtime collaborator Melanie Ward was backstage (she wasn't).  It's unfortunate for Costa that, after stepping out of Calvin Klein's shadow, he'd step into Lang's.  But simply put, he should know better.  But for those who don't know better, or who just don't care, there were attractive pieces to be found....  And yet, like the song says, it's never as good as the first time.

Suzy Menkes of the International Herald Tribune agreed:  At Calvin Klein, Francisco Costa, far from projecting forward, seemed to be shrinking back into fashion history with a collection that had some pleasant pieces, but seemed in thrall to other designers. With the bright, white space and high-tech vision that belonged to Helmut Lang in the 1990s and the full-shouldered silhouette of Claude Montana in the 1980s, Costa seemed to be turning back the clock.

Suzy also had cautionary words for Michael Kors:  The vibe was Degas meets Donna Karan in the 1980s. But the best looks were Kors's own: his luxurious sportswear given a touch of sweetness when a chiffon skirt twirled over a stretch bodysuit.

And in the New York Times, Cathy Horyn expxressed disappointment in yet another desinger's offerings:  Catherine Malandrino certainly has a signature in her French-casual sportswear.  It was hard, then, to comprehend what she was up to on Thursday:  models on a raised runway in funnel collars of the Claude Montana genre.

Certainly not every homage to another designer is blameworthy, and general trends are often inspired by particular eras or masters from the past.  No law could or would try to limit this sharing of inspiration.  But within the creative echelons of the fashion community, where the opinions of editors matter, the reputational gatekeepers accord acclaim to originals and blame to copies. 

September 07, 2006

Silversmith Hammered by Copyists

Silver pendant by Nancy Hazleton
Creative Counterfeit Chic reader and jeweler Nancy Hazleton sent the following email describing how widespread copying has affected both her business and that of fellow artisans:

I am a silversmith in Tucson, Arizona. It is impossible to compete with southeast Asians, making three dollars a day, and copying my designs. I would like to blame both globalization and the Internet but that wouldn't be productive. I guess the genie is out of the bottle. My only solution is to do custom work and fill a niche market.

If you go on eBay, there are so many people selling fake Native American jewelry.  It's definitely caveat emptor as some of the stuff is technically quite good. It sure makes it hard for Native silversmiths, though. Many refuse to have websites as they have been ripped off so many times. So, they end up selling at craft shows, a really lousy way to make a living.

From a legal perspective, this story is interesting because jewelry (unlike clothing) actually can be copyrighted.  And although Nancy isn't Native American, silversmiths who are have an additional level of protection under the American Indian Arts & Crafts Act of 1990, which doesn't prohibit copying but does provide that goods can't be falsely labeled "Indian" or "Native American."  As is frequently the case, however, enforcement would be time-consuming and expensive, so Nancy and many of her colleagues follow other stragegies.  Its unfortunate, though, that the internet in this instance is a hindrance rather than a help for talented creators.

Unless, of course, some of you happen to fall in love with a Hazleton original....

Waveset by Nancy Hazleton

July 13, 2006

Scents and Sensibility

Last month, Counterfeit Chic noted that cases in both France and the Netherlands had extended intellectual property protection to perfume, although the issue ultimately remained unresolved in France. 

In today's New York Times, Elaine Sciolino further explores two conflicting French decisions -- is perfume "a work of the mind" or not?  Is the creation a a new fragrance the result of a "simple implementation of expertise" or something more poetic?

"It's an extremely open and controversial question," said Catherine Verneret, the lawyer for Bellure, the company that lost in the L'Oreal case.  "Perfume is not only a simple aesthetic creation.  It is also an assemblage of molecules, a technical solution to a technical problem."

***

"When I write a perfume, the scents are the words," [perfumer Jean-Claude Ellena] said.  "And with these words I construct a story.  There is breathing, and there are transitions, just as in sentences.  Perfume, first of all, is a mental construction."

In reading the article, I wondered whether the courts in the divergent French decisions had been influenced as much by the facts and circumstances of the cases as by the copyright principle.  In the case won by cosmetics giant L'Oreal, the defendant was a perfume knockoff artist.  In the later case, a perfumer who had won an earlier case against her employer for wrongful dismissal unsuccessfully attempted to claim royalties for Dior's Dune, which she claims to have created. 

Do these cases represent a jurisprudential inquiry into whether an original fragrance may be subject to copyright, or a more instrumentalist protection of the industry?  Perhaps both, but the result so far is a lingering air of confusion. 

May 26, 2006

A Girl's Best Friend

Diamonds may be a girl's best friend -- but when the girl is also a jewelry designer, copyright law runs  a close second.

A recent raid on several companies in New York's Diamond District resulted in the seizure of over 100 items alleged to be "substantially similar" to designs by Judith Ripka.

Lucky for Judith that she doesn't design clothes.  Why?  Because while the Copyright Office considers clothing to useful and thus excluded from copyright protection, jewelry is more like a sculpture or work of art -- and therefore copyrightable.  (No need to slap on a logo and turn to trademark law for protection, like clothing or handbag designers do.)

In the landmark case of Mazer v. Stein, 347 U.S. 201 (1954), the Supreme Court traced this protection for 3-D works of art, including sculpture, back to 1870.  Later Copyright Office regulations cited by the Court specifically included "works of artistic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry...." (emphasis added). 

Of course, adding an adjective like "artistic" to describe copyrightable jewelry was an open invitation to argue about what is considered artistic and what isn't (with some interesting social class implications along the way) -- but that's a post for another day. 

In the meantime, enjoy your -- or Judith Ripka's -- copyright-protected bling!

May 22, 2006

Costume or Clothing?

In this week's Carnivale of Couture, the clever Style Graduate seeks examples of runway looks that could double as Halloween costumes.  Or carnival costumes, for that matter. 

This topic appears on its surface to be an innocent amusement, and perhaps a bit of a joke about the extreme fashions shown on the runway.  But beware -- it also poses a conundrum that could overload the fevered brains of copyright afficionados.

Last year, in Chosun Int'l., Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005), Judge Guido Calabresi (former dean of the Yale Law School and my esteemed torts professor) addressed the question of whether Halloween costumes are subject to copyright protection.  In 1991, the Copyright Office had stated that neither costumes nor ordinary garments are protectable as a whole, since they are "useful articles," but costumes may also contain separable design elements that could be protected in the manner of artworks. 

While the lower court had thrown up its hands at the "incoherence" of such a policy and simply dismissed the copyright infringement claim, Guido sent the case back for a separability test -- asking the district court to decide, for example, whether the body portion of a costume was a useful article of clothing but the heads and tails were distinct elements that could be protected by copyright.  According to his decision, some elements of the costumes were at least in theory copyrightable.

So if a designer sends an outfit down the runway as part of a collection, but a blogger later decides that it is more suitable as a Halloween costume, are elements of the look copyrightable?  What if the look was never intended for production, but was a unique garment produced for the show?  And for that matter, what exactly does "useful" mean in the context of couture?  (Confusing?  Of course.  Legal minds are still scratching their heads over the meaning of usefulness, separability, and so on.) 

Halloween costumes can be scary.  In the world of Counterfeit Chic, the separability test in copyright is even scarier.

P.S.  My favorite candidate for runway-to-trick-or-treat fashion?  Yohji Yamamoto's 1998 wedding gown, a wonderful play on proportion as well as the relative significance of an actual bride in comparison with the social and cultural excesses of a white wedding.  Of course, it requires 4 men with bamboo poles to hold up the hat -- but what's a wedding without cute attendants?

May 18, 2006

Knockoff Nuptials

Ever since Queen Victoria married Prince Albert, Western brides have been opting for white wedding dresses -- and a vast industry is eager to oblige.  For the New York bride-to-be, and many others across the country, the epicenter of the bridal industrial complex is Kleinfeld's.  The wedding gown emporium recently moved from Brooklyn to Manhattan, prompting the New York Times to take notice and send in "Critical Shopper" Alex Kuczynski. 

Within the satin- and lace-covered retail acreage, the proprieties must be observed.  Among these is a rule intended to foil would-be copyists masquerading as customers:

As a grandmother fumbled hopefully with a camera, the bridal consultant approached and put a hand on her arm.

"No pictures," she said, her smile settling into a thin line of reproach.

That's right.  "The use of cameras and the sketching of gowns is prohibited at Kleinfeld," reads a placard in each dressing room.  "This policy is strictly enforced."

In the world of bridal gowns, which, year in and year out are basically long and white-ish, individuality is key.  And no designer wants a one-of-a-kind sample copied by the tailor down the street, who would probably do it for a cost many multiples less.

Like other items of clothing, wedding dress designs are not protected by intellectual property law.  One designer did manage to find a loophole, however.  In Eve of Milady v. Impression Bridal, 957 F.Supp. 484 (S.D.N.Y. 1997), Judge Shira Scheindlin granted a prliminary injunction against an alleged copyist of the distinctive lace designs on certain bridal dresses.  The reason?  While clothes are not subject to copyright, fabric designs are considered protectable forms of writing, and the court found lace patterns to be a form of fabric design. 

All in all, a civilized dispute resolution -- surely more so than some of those likely to take place this Sunday at Kleinfeld's annual sample sale.

April 19, 2006

Pineapple Pirates

Pineapples may be a longstanding symbol of hospitality, but Ananas handbag designer Jennifer Baum Lagdameo finds that some competitors are all too comfortable with helping themselves to her original designs. 

She and her partner, Miwako Washio, created their stylish Furoshiki bag 2 1/2 years ago and continue to produce it in multiple colors ($285).  Recently, they've been informed that the signature bag and its larger sibling, aptly named the Grande ($375), have beeen knocked off by at least three (and possibly more) retailers. 

Check out the Bally Halter bag from Fossil (with slightly rounded corners, $148),

the Strangelove bag from vegan accessories boutique Matt & Nat (a virtually identical version in two sizes, $90 & $110) -- apparently the ethical treatment of animals is one thing, while the ethical treatment of fellow designers is quite another,

and the Kaya bag from Delia's (with a few beaded strips, the cheapest of all at $22.50).

While Jennifer's initial instinct was to be flattered or amused, she stopped laughing when Ananas lost both wholesale and retail orders as a result.

The legal response?  Silence.  While Ananas is a successful young company, the Furoshiki bag probably isn't immediately recognizable to most consumers -- so as long as the label isn't copied, Jennifer and Miwako will have a tough time getting protection, at least under current U.S. law. 

So what's a creative and talented designer to do?  When life gives you lemons, make lemonade.  And when life slashes your pineapples, break out the tiny paper umbrellas.

April 01, 2006

No Fooling

Among many human societies in general and Western culture in particular, we respond to literal copying as "bad" and creativity inspired by earlier works as "good."  To some extent, the law reflects this generalization.

But in legal terms, what is an infringing copy and what is simply the result of "inspiration"?  Over at Handbag Fetish, Aznstarlette wonders whether www.bagdesigns.net can get away with selling handbags marked with designer logos by adding the following disclaimer:

What is an “Inspired Designer Handbag”?

Please be aware that most internet sites do not carry the highest quality, but we do. It is very difficult to get this AAAAA quality.

An inspired handbag is designed to create the look of an authentic designer handbag to 99.9%. In no way do we represent our handbag as authentic or affiliated with any brand names. We simply ask that you compare the quality of our handbags with any other. All of our handbags are made with the materials of the originals. You will be pleasantly suprised with the quality of the bag you receive.

Nice try.  If it looks like a duck, walks like a duck, and quacks like a duck.... 

In other words, just calling a bag incorporating an unauthorized trademark "inspired" doesn't make it legal.  In fact, even without the trademark, a line-for-line copy of a very recognizable bag (like the Fendi Spy or Balenciaga Le Dix motorcycle bag) might be considered trade dress infringement.  Think of it this way:  a law enforcement officer will not hesitate to seize a kilo of cocaine marked, "The enclosed is not intended to be a controlled substance." 

Or as Rene Magritte might put it:

(OK, OK, the idea of The Treachery of Images is that a picture of a pipe is not actually a pipe -- but you get the point.  Reality cannot be altered by a false disclaimer.)

So no, many of the designs offered online are NOT legal -- which is why these sites appear and disappear so quickly. 

March 28, 2006

Counterfeit Chic's New "It" Bag

The sidewalks of New York's Soho neighborhood are cluttered with vendors selling copies of bags by Kate Spade and its masculine counterpart, Jack Spade -- often right outside the pair's respective boutiques.  Despite new legislation, legal actions, and periodic police raids, urban counterfeits are as persistent as cockroaches. 

This spring, however, Jack is fighting back. 

The company has taken a clever new approach to knockoffs:  if you can't beat 'em, parody 'em.  The Jack Spade "Chinatown Collection," which debuted in February during New York Fashion Week, takes cheap plastic "made in China" tote bags and rebrands them with a real Jack Spade label.  To drive the point home, the company even offers personalized monogramming of the bags -- check out Counterfeit Chic's stylish "CC" below.

The Jack Spade bag has everything that real counterfeits do:  flimsy construction, inferior materials, a low price, and an intentionally misleading trademark.  It also has one thing that most knockoffs don't:  a waiting list.   

Apparently Counterfeit Chic isn't the only one who appreciates Jack Spade's intelligent and amusing initiative.  In fact, everyone who sees this tote smiles.  Smart and funny -- what's not to like?  It's definitely our must-have bag for spring! 

March 14, 2006

Fashion Capital

At a CFDA reception that I attended earlier this evening, Nicole Dreyfuss was one of the young designers on hand to remind Washington that the fashion industry remains concerned about knockoff artists. 

Nicole, who designs (and originally knitted) a successful line of handbags under the label Margaret Nicole, noticed last year that Abercrombie & Fitch was selling a suspiciously similar bag -- for a rock-bottom price.  While Nicole's excellent media and legal connections helped her stand up to A&F -- her mother is NYU IP law professor Rochelle Dreyfuss -- the designer is concerned about others who generally lack protection under U.S. law.  

Most appropriately for an industry associated with creative/expressive women, the venue for the event was Sewall-Belmont House, the headquarters of the historic National Women's Party and former home of its founder and Equal Rights Amendment author Alice Paul.  Love the subtext! 

March 04, 2006

Virtual Counterfeits

Can you sell counterfeits of an imaginary object?  Absolutely, if demand exists in a virtual world -- like that of EverQuest2. 

According to New Scientist, prices for equipment like the Dark Shield of the Void dropped precipitously after some gamers discovered a way to make unauthorized copies.  And when we say "prices," we're not just talking Monopoly money -- armor, weapons, and even characters are bought and sold for real as well as virtual cash. 

So are the virtual cops on the case, or is this the online equivalent of Canal Street?  Apparently programmers try to catch and correct bugs in the system as soon as possible, but in the meantime gamers themselves play the role of fashion police:

Computer gaming expert and keen gamer Edward Castronova at Indiana University, US, says duplication flaws are not uncommon in online games and notes that the virtual communities in such games can often regulate themselves, agreeing not to exploit such flaws to maintain playability.

"Sometimes social norms can be effective," he told New Scientist. "Everyone may know that a dupe exists but it's like 'who cares?'"

In other words, fighting with a fake Wand of the Living Flame is like showing up at Fashion Week with a knockoff Vuitton

Could there be real-world legal consequences?  Well, software is subject to copyright, so its possible that if hackers copied and modified code there could be a cause of action.  In addition, such behavior could violate licensing agreements. 

But illegal or simply illicit, the concept of distinguishing a "real" virtual object from a "fake" one is a mindbender.

February 24, 2006

The Man of ... Silk?

In honor of the first New York Comic-Con this weekend, here's a look back at Superman's triumph over one of Metropolis' most nefarious villains -- The Dude!  Note the measuring tape whip, the white tie & tails, the phalanx of unhappy women in lookalike dresses....

Superman #23

Never heard of The Dude?  Well, neither had Superman -- until the summer of 1943, when Clark Kent was forced to accompany Lois Lane on a shopping expedition.  She bought an expensive, one-of-a-kind dress (French, of course), only to see a cheap imitation in a dress shop in a "down-and-out neighborhood."  Shocked, Miss Lane demanded her money back -- and mustered both her feminine outrage and her journalistic instincts to expose the knockoff racket.  Naturally, she endangered herself in the process, requiring Superman to come on the scene, avoid a not-so-clever trap, and vanquish The Dude. 

The story has it all -- our favorite gendered industry (and its seedy side), class issues, French styles, creativity, copying, a smart woman on the case....  But if the Man of Steel was uncomfortable in a women's clothing store, why was Jerry Siegel, one of the original creators of Superman and the author of "Fashions in Crime!" so concerned? 

Well, knockoffs were perhaps an even more widely discussed issue back then than today.  (In the comic, after Lois Lane publishes her original story, "Feminine readers flock to the Daily Planet in droves.")  And Siegel's mind was on copyright issues.  He was already uncomfortably aware that he and his partner, Joe Shuster, has signed away the rights to Superman for a song; moreover, DC comics was engaged in a series of ongoing legal battles, claiming that other companies' superheroes infringed on Superman.  So perhaps he had some sympathy for upscale fashion designers, or at least the women who wore them.

The real question is why a guy in tights and a cape felt the need to deny an interest in fashion.

February 22, 2006

Marking Territory

When the law fails to stop knockoffs -- most of the time, in the case of fashion -- manufacturers turn to technology.  In the 1920s, couturiere Madeline Vionnet borrowed a hot tip from criminology and stamped her thumbprint on clothing labels:

This century's technologies are being put to similar use.  Today's Wall Street Journal reports that luxury goods company Fendi had incorporated holograms into its labels:

Meanwhile, scientists are developing DNA technologies to identify consumer goods:

What's next -- "smart" handbags that will recognize and hail other genuine goods?  Embedded microprocessors that will give the wearer access to retail VIP rooms or sample sales?  Geek chic is no longer science fiction; it's fast becoming retail reality. 

February 07, 2006

After a Nuclear Disaster...

...there will still be cockroaches -- and fakes on Canal Street in New York. 

Last Tuesday, LVMH announced a major settlement with a group of Canal Street landlords, in which the landlords agreed not only to ban the sale of counterfeit Louis Vuitton goods on their premises but also to post warning signs:

Last Wednesday, Mayor Bloomberg declared February to be Anticounterfeiting Month.  No doubt he and LVMH expected results like this: 

Empty Mall Shop

By last Thursday, however, there were no warning signs to be seen, and the knockoff business was up and running again:

LVMH Knockoffs

Although on Friday the presence of a photographer did make the proprietors a bit nervous:

But at least they didn't pull down the metal security gates and lock me inside the shop this time!

January 18, 2006

Counterfeit Cupcake Caper?

Boing Boing reports today that independent designer Johnny Cupcakes claims to have been ripped off by Urban Outfitters.  Apparently Johnny discussed the possibility of doing business with the national chain last year and submitted samples, which were never returned.  Recently, a friend emailed him to say that Urban Outfitters was selling one of his designs under their own Urban Renewal label.

The jet dropping cupcakes on the left is Johnny's original design; the one on the right is manufactured by Urban Outfitters:

Johnny Cupcakes T-shirt

Urban Outfitters T-shirt

 

 

Worse still, according to Johnny this is not an isolated instance of Urban Outfitters appropriating the designs of startup artists.

So, can't Johnny sue?  Doesn't he have a copyright in his design? 

Well, yes -- and no.  Johnny has a copyright in the design on the front of his T-shirt (though not in the T-shirt itself), but he does not own the idea of a jet dropping cupcake bombs.  Copyright law protects only Johnny's particular expression of the concept, and the Urban Outfitters design may very well be different enough to avoid legal censure. 

Johnny Cupcakes has no intention of being sweet about this "awful, scummy situation," however.  Instead, he's using the internet to harness social norms against copying by asking those who read his site to repeat his story, shun "cheating" companies, monitor Urban Outfitters for possible copying, and especially buy T-shirts direct from the source. 

He may wield aluminum cupcake pans instead of brass knuckles, but with a name like Johnny Cupcakes, you know this young designer means business.

January 08, 2006

Law Profs, Part 2

The AALS conference is over, and I've had my 15 minutes of ... well, surely not fame, but air time.  With discreet reminders at the 5-minute and 2-minute-remaining marks.

My extremely gifted fellow panelists for "A Cultural Analysis of Intellectual Property" offered fascinating and thought-provoking remarks, with Julie Cohen offering a description of how cultural theories, and in particular science and technology studies, can move intellectual property theory beyond the two predominant schools of natural rights and economics; Sonia Katyal developing a new corporate personality/identity theory of trademark; and anthropologist Alexander Bauer reminding us all just how inadequate the law is when it comes to protecting cultural heritage.  Mark Lemley, the devout economist of the bunch, did an amazing job as commentator, managing to pointedly but constructively eviscerate us all, even with little or no prior notice as to what we would say. Thanks to everyone, especially Madhavi Sunder, who organized the panel but was unable to attend.

My own humble ideas, as you know from the last post, revolve around the need to consider areas of creativity -- like fashion -- that have historically received little or no IP protection if we are to develop grand, sweeping theories of IP.  After some general ruminations about human creativity and the role of IP law, I offered a list of seven cultural attitudes that have contributed to lower levels of protection for clothing/textiles in the the U.S. (and probably apply to other creative fields as well).  In very brief form, here they are:

Continue reading "Law Profs, Part 2" »

January 06, 2006

Law Profs Gone Wild

What happens when you release law professors across the country from their (academic) institutions, let them all travel to the same place for a week, and record what happens? 

Well, just say that it probably doesn't add up to a best-selling video.  Mostly, we talk.  On panels, behind podiums, and definitely in the hallways. 

I'm spending a very hectic few days at the annual Association of American Law Schools (AALS) conference -- please excuse me if I haven't answered email -- and my task this afternoon is to talk as much as possible in a short time about a vast subject.  I'm on a panel called "A Cultural Analysis of Intellectual Property," and I'm planning to say that if you want to create a theory of IP, you have to consider areas that have historically received little or no effective IP protection.  Like the clothing & textile industry, for example. 

This could be difficult because (1) at the moment, law profs are more concerned with overprotection than underprotection, and (2) the fashion industry, unlike for example the music industry, and despite massive contributions to the global economy and major internal discussions regarding IP, isn't on the radar of most legal academics.   (Of course, you would know that by looking at us.  Guys, some of those ties aren't vintage -- they're scary.) 

So wish me luck -- and I'll keep you posted.

 

January 05, 2006

Fashion-Incubator

The fabulous expert patternmaker Kathleen Fasanella has very generously mentioned Counterfeit Chic in her blog, Fashion-Incubator, and (even better!) has allowed me to answer a few questions about IP from her readers.  Fashion-Incubator is a wonderful read, even for a non-expert in technical matters, and Kathleen is extremely entertaining and informative.  Check it out! 

January 03, 2006

Is Grey the New Black?

Law is often ambiguous or subject to interpretation, but sometimes the black letter rules are clear:  it is illegal to place false labels on knockoffs or to sell replicas as the real thing.  We can debate the merits of the law, discuss the purpose of the law, or ignore the law, but the law still sees certain actions in black and white terms.

There is still, however, quite a bit of grey area in the law -- areas of uncertainty, where both the rules and questions of right or wrong are unclear.  (I suppose law is like mold; the fuzzy grey areas are the ones growing fastest.)  For example, how should we categorize a clearly labeled handbag from an established but inexpensive brand that resembles a much more expensive, exclusive design?

Wilsons Leather BagDesigner Ella has raised this issue recently in not one but two blogs, Pursed Lips and Kiss Me, Stace.  She fell in like (let's reserve love for a grander passion) with and bought the Wilsons Leather Turn-Lock Handbag -- which just happens to resemble the iconic Hermes Birkin (now there's a love object!).  Enter guilt -- but not too much guilt, as one retails for $60 on sale and the other starts at nearly $10,000, if available.  In addition, Ella finds the details of the Wilsons more suitable for her needs.

From a legal perspective, Wilsons is pushing the envelope but probably doesn't have too much to worry about.  There are substantial differences between the two bags (the Wilsons zips at the top, for example), so a court would probably consider the likelihood of consumer confusion to be low.  Futhermore, Hermes has much more pressing concerns in the realm of copying.

From a normative perspective, is there anything wrong with the Wilsons?  Well, that's up to each consumer to decide.  After all, all designers are "inspired" by others, whether they admit it or not, and there are only so many ways to make a receptacle for carrying around the bits and pieces of daily life, a.k.a. a purse.  Still, certain designs are more recognizable and more creative than others.

An informal study of what degree of copying is considered "wrong" within the fashion community leads me to list the following basic objections:

1.  Too literal.  Inspiration is fine, line-for-line copying is cheap and uncreative. 

2.  Too close in time.  It's one thing to reinterpret a 1960s Courreges, it's another thing to knock off last season's Prada.

3.  Too similar a market niche.  H&M or Zara can get away with much more than, say, Ralph Lauren copying YSL.  Issues of competition aside, we simply expect more from expensive design.

Too much grey area?  Well, that's why we have lawyers -- and editors, critics, tastemakers, fashionisti, bloggers, discerning consumers, and you.

December 31, 2005

Year in Review III: Counterfeit Conversations

There may be neither societal consensus nor legal clarity regarding copying, but that doesn't prevent it from being an ongoing topic of discussion within the luxury goods industry.

From a January 2005 feature in Harper's Bazaar magazine and accompanying Anticounterfeiting Summit in New York to a November/December 2005 WIPO symposium in Italy -- and many events in between -- concerned parties have come together to knock knockoffs.  And they hope you're listening.

Police raids and lawsuits have some effect on the distribution of counterfeits, but where there's consumer demand, there will be supply -- witness the "world's oldest profession."  If people stop buying illegal fakes, however, manufacturers will no longer bother to produce them. 

But how to reach the fashion-savvy but impecunious or price-resistant consumer?  The quality argument is often unpersuasive, especially to the person just seeking a disposable fashion fix.  Appeal to the rights of designers generates little sympathy when they are charging $15,000 or $20,000 for a handbag.  Laws aimed at punishing consumers, like the new legislation in Europe, are unpopular and difficult to enforce.  Attaching social stigma to counterfeits, however, is a relatively new approach.

So, let's talk.  What's wrong with counterfeits?

The sale of counterfeits is controlled by organized crime?  This one is too easy.  Prohibition, bootlegging, Al Capone, remember?  If you declare alcohol, counterfeits, or anything else illegal, it won't be sold at a PTA bake sale. 

Counterfeits fund terrorism?  Could be.  But didn't they (whoever They are) just say the same thing about drugs?  And fear of terrorism as a justification for government action doesn't have quite the same rhetorical value as it did a few years ago.

Counterfeits are manufactured using child labor?  Well, major corporations like Nike have been accused of the same thing.  Yet this claim tugs directly at the heartstrings of consumers, particularly women, and it is elaborated in the current issue of Harper's Bazaar in "The Human Cost of Fakes."  As the poet Margaret Widdemer wrote nearly a century ago, "I have shut my little sister in from life and light/(For a rose, for a ribbon, for a wreath across my hair.)"  Buyer's remorse, anyone?

Whether all of this reflects a desperate/manipulative effort by manufactuers to protect profit margins, a genuine desire to eliminate a social evil, or perhaps both, I leave for you to decide.  One thing is certain, though:  this conversation will continue into the new year and beyond.

Happy 2006!

December 22, 2005

Project Copycat?

In Project Runway previews the past couple of weeks, the oracular Tim Gunn has admonished the competing designers, "Don't be copycats."  Apparently someone skipped kindergarten. 

Now some insist that Project Runway itself may be a knockoff.  Two separate lawsuits claim that ideas for "America's Runway" and "America's Fashion Designer Search," respectively, were pitched to defendants later involved in the development of Project Runway.

You can't copyright an idea, only its specific expression -- but it is alleged that the show is a bit too similar to the plaintiffs' pitches to be a coincidence.  But perhaps Heidi Klum et al. should be pleased.  Nobody ever sues a flop.

Developing....

December 20, 2005

Intelligent Design

The As Four circle bag may just be the Platonic form of a handbag. 

The circle-within-a-circle design echoes As Four's usual complex petal shapes, which in turn reference the mathematical perfection of nature itself.  At the same time, the design reduces the handbag to its simplest possible form.  The circle bag is amusing, intelligent, and intuitively appealing.  Which may be why it has been continually copied, even by other boldfaced name designers. 

AsFourKateSpade circle bag

Gabi, Ange, & Adi, the three remaining designers of As Four, are by turns flattered, amused, bored, and frustrated by the constant attention to the circle bag and its copies.  As Gabi told me when I visited their downtown studio, "Our designs show that we are an intelligent company; the bag shows that we are an entertainment company." 

Like most successful young designers, As Four is focused on the future, not the past.  In our conversation, the three agreed that they have neither the time, the money, nor the interest to pursue elusive legal remedies against copyists.  In any case, as Adi reminded me, "everyone knows we're the original one, the first." 

Luckily for As Four fans and other connoisseurs of authentic design, As Four and Kate Spade have teamed up to reissue the bag for the holidays.  Their design, her colors -- a choice of bright pink or orange with a preppy polka-dot interior, perfect for a tropical vacation.  And if you order online by noon tomorrow, Kate Spade will provide a free shipping upgrade for delivery by December 24.

December 19, 2005

The Case of the Brown Paddington

Kudos to The Bag Snob for calling attention to intellectual property law's nasty little secret -- the power of the cease and desist letter.

Apparently the intrepid handbag blog was at the epicenter of a dispute regarding whether online merchant Sophisticated Spirit sells fakes, in particular one chocolate Chloe Paddington bag much desired by Bag Snob reader "X." 

chocolate Chloe Paddington bag

After seeing photos, Bag Snob concluded that the bag was not genuine.  Sophisticated Spirit's lawyer responded with a C&D letter requesting that Bag Snob

1) immediately remove all statements and references to "not allowed to say" from your website, (2) cease posting or allowing others to post statements or making any references to our client whatsoever, and (3) remove the Chloe photos that were taken from "not allowed to say" from your website.

As evident from the edited C&D, Bag Snob complied to avoid an expensive legal defense, but not before the original exchange was repeated (with much commentary) on The Purse Forum

I don't know whether the lust-inducing bag that launched a thousand messages was counterfeit or not, but I do have questions about the lawyer who sent the letter.

C&D letters are a useful legal tool, a first warning to alleged wrongdoers before additional legal action.  Chloe might send one to alleged counterfeit resellers, for example.  However, C&Ds can also have a chilling effect on legitimate and socially beneficial discussion, especially when the recipient doesn't have the money or time to defend against a lawsuit.  As Bag Snob put it, such actions can be "a disservice to the shopping community."  A responsible lawyer should be not only a zealous advocate for her client, but a guardian of the law itself -- and should thus refrain from overbroad demands or inappropriate threats.  (Check out the Chilling Effects Clearinghouse for an advocacy project on this issue.)

Beyond the question of misuse of C&Ds, it's not clear that sending the letter was good strategy.  Even if we assume that Sophisticated Spirit was NOT selling counterfeits, what has she gained?  Sending a C&D letter to an internet site can be like trying to put out a fire with gasoline.  There are probably more references to the Paddington dispute out there, including this post, than there would have been without a C&D.  Social groups react badly to being told to shut up.  Lawyers in the age of open internet communication should consider this when advising clients, even if it means saying, "No, I won't take your money and write a letter -- it would be bad for your business in the long run."

So, what could a good faith seller do?  First, realize that goodwill is the most valuable asset of almost any business, and work to build it.  The web is a locus of social networks that can create trust -- or the opposite.  Become part of the community and give potential buyers reason to trust (what was the seller's fashion background prior to retail?  why is the seller not likely to be fooled by shady suppliers?  how does the seller have access to scarce commodities like the latest "it" bag?  is the seller part of a trade organization with an anti-countefeiting policy?  does the seller have an open forum for feedback from buyers?).  Next, handle any disagreements quickly, professionally, and as quietly as possible. 

At the end of the day, the law can be a very blunt instrument.  (Think clubs and baby harp seals.)  Never underestimate the power of social networks and social controls, or the benefits of harnessing them.