There Ought To Be A Law–Against Bad Manners

There has been much in the news lately about the law and the appropriateness of conduct. Here is a short summary: groping people you come across during the course of a workday is illegal. That was easy. Now try this one: when hosting a business lunch, should you direct the seating or let your guests choose their own seats? If you draw the task of picking the wine for the lunch meeting but may not end up paying for it, what sort of bottle should you choose? These and other questions (that may be of small moment to celebrities who risk arrest for sexual harassment or worse but remain of considerable consequence to those very many of us who want to host a successful business lunch) were answered for me in a private session by Skype with the British etiquette consultant William Hanson.

Young, well-spoken and serious about his subject, Mr. Hanson, who appears regularly on British television, proved uniquely qualified to help guide me through these muddles of my own making. The host, he advised, should take it upon himself or herself to assign seats to the invited guests. That was comforting to hear because it is often the case that, in any group of people seated for business, there are one or two you especially want to speak with—and there may also be one or two you know would not take particularly well to speaking to each other. Mr. Hanson’s license to direct the seating was therefore gratefully accepted.

As for the wine: although many has been the time I have thumbed the wine list to survey first-growth Bordeaux bottles from triumphant years, I know better than to stick my host with a four-figure drinks tab. Mr. Hanson recommended a practice I have actually been following (to my relief): ask what everyone is having for a main course, choose an appropriate style of wine and (if needed, with the help of the sommelier) pick a bottle two or so notches up the price scale from the cheapest.

The question of who pays is an interesting one—especially when everyone is presumably on an expense account and is privately measuring the price of the meal in relation to his or her firm’s rules or expectations. One the nice things about bringing guests to your club is that the question of who pays is thereby settled. In a restaurant, Mr. Hanson advised, the host should consider setting up payment with management before the first guest arrives. Failing that, slipping away discretely before the bill comes is also an easy way to handle a sometimes-delicate situation.

There ought to be a law. That has been said so many times about things that are merely annoying, albeit consistently so. For me, there ought to be a law reprimanding any food and beverage manager who permits servers to pour water intended for tea into a coffee chafer urn—because once the urn has been permeated with coffee, the tea will taste from coffee no matter how long you let it steep. Mr. Hanson addressed my related concern: the speaker has stood up and everyone is drinking that so-so coffee or even worse tea—and returning cups onto saucers with clacks that can make the speaker feel as if he or she is addressing a room full of obedient crickets. The solution: practice doing it in silence or muzzle the fall of the cup with a paper napkin.

And finally from Mr. Hanson, a fashion tip (and one I have been giving): for those of us who wear bespoke suits: button all the sleeves—no leaving a couple open so everyone knows you have a tailor. It is obviously a good suit, and the buttons do their assigned good work when closed.

As Mr. Hanson reminded me, good etiquette is simply about putting others before ourselves. If everyone does it, everyone, in business or socially, will feel blessed.

Credit:  Alan Behr


Star Athletica: An Unsatisfying End

If you were hoping that following the Supreme Court’s decision in Star Athletica you might learn whether common stripes, chevrons, color blocks and zig zags are sufficiently original to be copyrightable—a question expressly reserved by the Supreme Court and the Sixth Circuit– you will be disappointed. On August 10, 2017, the district court permitted Varsity Brands to voluntarily dismiss its copyright infringement action against Star Athletica with prejudice, over the objection of Star Athletica, which wished to pursue its counter-claims seeking to invalidate the Varsity Brands copyrights.

You might well ask, as we did, why after seven years of largely successful litigation, Varsity Brands would be permitted to walk away. Or you might ask, as we also did, why Star Athletica would object to having the suit end with no apparent injunctive or other relief awarded against it. Both are fair questions and the answer to each is unusual: The insurance company that was defending Star Athletica reached a settlement agreement with Varsity Brands, without the participation or approval of Star Athletica. The terms of the settlement are confidential. The only clue is the court’s reservation to Varsity Brands of the right to return to court if it does not receive the payment from the insurer required by the settlement. As far as Varsity Brands is concerned, not only does it get money, but it also avoids the potential for invalidation of its copyrights, having made its point that the two dimensional designs reflected in its uniforms are separable from their utilitarian features and theoretically capable of copyright protection. It now has a stronger threat to hurl at potential competitors.

But what of Star Athletica and its interest in settling its rights to compete with Varsity Brands in the cheerleading uniform market? In the view of the court, Star Athletica receives what is in effect immunity from future claims of copyright infringement related to the copyrights and uniforms at issue in the action. And also in the court’s view, Star Athletica’s counter-claims to invalidate the copyrights were only defenses to the copyright infringement claims and not independent bases for legal action once the threat of copyright liability was removed. And that is the rub: Varsity Brands has many other copyright registrations for which similar challenges to their validity might (or might not) have merit. Because the court did not provide guidance on that fundamental point, competing uniform makers remain exposed to similar infringement claims.

One can’t help feeling that the broader fashion public had an interest in the resolution of the question of whether stripes and chevrons are original when applied to garments. But it is an axiom of federal court litigation that the courts do not decide hypothetical cases or controversies for the edification of the public.

For now, if you are interested in whether stripes can be protected in fashion, you will have to focus on trademarks and not copyrights. There is always Gucci’s suit against Forever 21 for knocking off what it claims is its stripes trademark. And then, too, there is Adidas’ pending suit against Skechers for knocking off its three stripe trademark. The district court in Oregon just decided that Adidas’ trademark infringement suit can proceed.

Credit:  Helene M. Freeman


Gemstones: The Complexity of Colors

I would like to highlight an interesting trend that has developed over the last ten years in the field of gemstone jewelry design and sales. An increasing number of women are joining the jewelry industry in sales and executive positions, as professional buyers for large firms, designers, bench jewelers, store owners and cutters.

In what has been a traditionally male-dominated industry (I know that may sound strange), this encouraging phenomenon has made me see things differently in terms of how I buy, sell and even cut precious stones.

Over ninety percent of gemstones in the marketplace have undergone color treatments to intensify the primary color. For example, such a treatment will make a pink sapphire more pink and less purple, and an aquamarine more blue, less gray-green.

Uniquely, I buy and cut only natural color gemstones. That is, the gems have not undergone any heat or irradiation treatments to alter or improve their color.

I have noticed a decided increase in female buyers as my clients. It occurs to me that men seem to be more focused on primary colors given off by a gemstone while more women are intrigued by undertones (or secondary colors).

The bluish purple undertone of a typical untreated pink sapphire is a feature that women often find extremely interesting. Men, however, quite often just want to see pink and only pink.

Simply put, more men tend not to appreciate or simply do not value the complexity of natural untreated gemstones the way women do. Subtle, yet mysterious, undertones are a captivating hallmark of untreated gemstones. Learning that aesthetic point of view from my increasingly female clientele and “retraining” my eyes over the past ten years has enabled me to better understand what women are seeing in gemstones and has been immensely helpful to me. It seems one can never stop learning, even when it comes to stones literally as old as the hills.

Credit:  Glenn Preus | Guest Post

Phillips Nizer would like to thank Glenn Preus for this blog post. Glenn is a gemstone cutter in Honolulu, Hawai’i. He can be reached via Instagram: @glennpreus


The Boss Will See You Now

I once insisted to my colleagues that it really is nothing to write a blog post: you can do it while waiting in the checkout line at Whole Foods.* Although that has proven overly ambitious, I was indeed standing in that very line the other day when a customer laboriously explained to a cashier about how another market had developed biodegradable non-paper bags, how her cooperative apartment building simply disposed of the Whole Foods bags without recycling, and in general how unrealistic it was for Whole Foods to expect anything good to come out of its use of paper shopping bags. The cashier, a very young woman, clearly had not been expecting, on punching in that morning, to debate sustainability with a stranger; she took the woman’s payment and gently encouraged her to move on.

Why did the loquacious customer decide that a cashier was the right person to address shopping bag policy at a company with 91,000 employees? I reflect on that because I am sometimes approached by people in the fashion business in the hope that I will introduce them to others who can help them in their careers. Young designers want me to introduce them to retailers. Entrepreneurs at start-ups want help in meeting financiers, and financiers want me to introduce them to the owners of thriving businesses and distressed businesses. Sometimes, I can accommodate them, but because lawyers tend to rub elbows with other lawyers and with executives who need (I did not say want) to speak with lawyers, doing so is not commonplace for use. My contacts are therefore what you would expect from a fashion lawyer: people who have devoted at least part of their work lives to dealing with contracts, governmental filings and lawsuits.

There are many different areas of expertise and specialties in the fashion and luxury goods businesses. And there are also many layers of responsibility. We all know that, but when you want something enough, it is easy to forget—and to hope that whoever you can easily get hold of is the right person to meet. Before approaching an organization, it is always a good idea to learn as much about it as possible, first to know about what it wishes to reveal about itself, second to know what it expects next to achieve, and third, and perhaps most important, to know who is the gatekeeper for the topic you are hoping to bring to the fore. Your lawyer can sometimes indeed be a resource. We have access to databases and we do know useful people. So we may have the right contacts for you—or we may not; it all depends on what you want and on those old but eternally important variables: good timing and good luck.

We have come a long way in gaining quick access to information from the days when, at the insurance company where I once worked, the people in charge of investments made sure to own one share of every corporation listed on the New York Stock Exchange, just to be able to receive the annual report. But that information and so much more is now readily available online—which of course means you do not need anyone else to look for you, as long as you know where to look. It is when the devil arrives with his proverbial details that lawyers can sometimes help—as can accountants, consultants and all the other professionals who absorb the time and money of business people everywhere. It is just part of the game, but it is a game we should all know how to play.

* Because I know I will be asked, as was the case with this post, the best time to catch up with your blogging is while waiting for your eight-year-old to soak himself and everyone nearby in a water-gun fight at a very wet playground.

Credit: Alan Behr


In the Fitting Room with the Thieves

Shopping with Big Sunglasses Woman Keeping a Secret

Whether you call it shoplifting or shrinkage and the people tasked with stopping it the house detectives or the asset protection department, and regardless of what new technology you put into place, if you are a retailer, stealing is a problem that will never go away. When I was in high school, back in New Orleans, I worked weekends and summers at the department store my family owned and operated (and long since shuttered). I got to see firsthand the extent of the problem—which was harder to track in those days before electronic inventory controls. The manager of my department was arrested for stealing a pair of Mickey Mouse suspenders from the warehouse. He had been collared by the four-man security team brought in to replace the aging and quite ineffective store detective. During a big three-day sale taking place over a long summer weekend, as the junior and surely least valuable member of our sales team, I was relegated to sitting in the men’s fitting room, watching for thieves. All I got for my trouble was the chance to alert security to the customer who thought that the fitting room stall belonged in the men’s bathroom and had used it accordingly. That incentivized me to petition for repatriation to the sales floor and, just to be sure my position did not revert, I became the top sales person of my department during the next three-day sale.

Jump some years ahead, and now I find myself working with clients in retail on the law of asset protection. There was the time I had to work with the manager and assistant manager of one department store branch that was being sued for assault and false imprisonment by an alleged shoplifter who claimed he had been injured in his apprehension. The plaintiff appeared at the first hearing on crutches, and justice being as slow as it is, by the time the second hearing came around, he was practically pole vaulting with the things, which his lawyer, who could now hardly catch up with him, obviously told him to keep using in an effort to garner sympathy and a favorable settlement.

It was frustrating to our client, but none of that has changed much. You still need to be sure that you work with counsel to know what you can and cannot do in pursuing, approaching and ultimately challenging a suspected shoplifter. There are rules about that, and they vary from state to state. Just as an example, in New York you need to show that the suspect took possession of the item with an intention to make off with it. If you are found purposefully trying to sneak out a T-shirt by wearing it, give your lawyer a call; but if you tuck the T-shirt under your arm while paying for something else and mistakenly head out with it, you are guilty only of absentmindedness.

As long as retailers work very hard to create demand for what they sell, and as long as objects of desire hang and lie in public view, shoplifting will be a problem. As with all other problems that are certain to occur, it is always best to have policies and procedures in place and to make sure that the individuals charged with being the first line of defense—the sales staff—are thoroughly briefed on what to do. It is prudent to have counsel and the security team conduct periodic joint seminars with sales and security personnel. As with everything else in the law, the proverbial ounce of prevention will alleviate the need for the more than typically expensive, when it comes to litigation, pound of cure.

Credit: Alan Behr


Remembering Bill Cunningham

Bill Cunningham MCNY Winter Ball 02-25-15

The term fashion photographer typically brings to mind a specialist who works on assignment for advertisements or editorials and who brings to each shoot enough equipment to light a stadium and enough digital photographic gear to document a war. Bill Cunningham, who died on Saturday at the age of 87, did it all differently and in so doing became the essential visual chronicler of fashion in the USA.

Bill worked for The New York Times, but there is no external evidence that he took direct orders from editors—or that he deferred to the wishes of designers, subjects or anyone else. His method was to go around Manhattan on a bicycle, wearing a purposefully utilitarian and unfashionable outfit: blue French worker’s jacket, khakis and sneakers. At charity benefits and other social goings on—which is where I usually ran into him—he would switch into something black, not to be fashionable, but to blend in, rather like a stalking ninja—which, photographically, is rather the role liked to fill. His camera was typically an obsolescent (to a photojournalist) 35mm film model, and I never saw him trouble himself to carry more than one lens. He was balletic in his movements, turning, twisting, weaving and sometimes seeming to float among chatting socialites, popping off at what interested him. He was all business: if you called out, “Hi, Bill,” you were lucky to get a nod and a smile in response before he seemingly had slipped under the dress of the grandly frocked blonde next to you and emerged unseen to snap one just like her a few paces beyond.

The protocol was to pretend you did not see him even if you did, even as you silently pleaded with the gods of fashion that you had worn something worthy of Bill’s attention. (As a middle-aged man in a Henry Poole dinner jacket, I never held any such illusions.) The payoff was to have your picture in The New York Times, most often in one of the short videos Bill filed, narrated in his typically avuncular style—his high voice effusive with enthusiasm at trends and fads, some of them not known to almost anyone until he announced their ascendance.

Bill was no photographic stylist. As long as the image made his point about what was being worn, it was good enough for him. And because his eye for fashion was so unfailing, it made no matter. As Anna Wintour, the editor-in-chief of Vogue, frequently acknowledged, “We all dressed for Bill.”

If Bill photographed you, by all means, accept the honor and cherish it. Under law, you have no right to compensation for it: if he snapped your image at a benefit or on the street, you had no expectation of privacy, and so he did not need the one thing he never appeared to have concerned himself to get: a model release. Sometimes people claim that, in some published photograph or another, they were made to look bad and so try build a case around that. With Bill Cunningham, sorry: he would only photograph you if he thought you looked fantastically unique or simply fantastic. If you did look bad or (almost as unsettling) commonplace, he just passed you by. Conversely, if you managed to photograph him at work, as I did for my series of photographs of the Upper East Side party scene Naked at the Ball (the picture is above), he did not care—just as long as you did not get in his way when it was his turn.

Bill Cunningham was indeed one of a kind. The fashion world will miss him.

Credit: Alan Behr

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Photo Credit: Photograph Copyright © 2015 by Alan Behr