Compendium of Copyright Office Practices – 3rd Edition
Posted: January 21, 2015 Filed under: Federal & State Laws, General / Musings, Intellectual Property | Tags: Compendium of Copyright Office Practices, copyright protection, U.S. Copyright Office Comments Off on Compendium of Copyright Office Practices – 3rd Edition
The U.S. Copyright Office delivered a Christmas present to the creative industries: The third edition of the Compendium of Copyright Office Practices. Unlike its predecessors, the third edition is not merely a set of instructions to the Copyright Office staff for administering the registration and recordation functions of the Register of Copyrights. The new version is intended to provide guidance to applicants for copyright, as well, setting forth what is and is not copyrightable and identifying who is entitled to claim copyright ownership.
Fabric and jewelry designers will find its lists of non-copyrightable subject matter and its examples of the distinction between copyrightable and non-copyrightable designs instructive. While the Compendium reflects significant judicial decisions, collected in a table of authorities, it also ventures into areas that have been considered unsettled.
This is particularly apparent in the section devoted to the copyright in websites. Insofar as the Register of Copyright is concerned, the format, layout and “look and feel” of a website are not copyrightable; but the content—text, photographs, audio and audio-visual works—are copyrightable. The website creator may have a copyright in the collection or compilation of these materials, consisting of their selection and arrangement, even if it has not created the contents. If the website’s terms of service require a user to convey “exclusive rights” in user generated content, uploading by the user of his or her content to the site will entitle the site to claim ownership of the copyright in the content. But the Copyright Office does not make registration easy. It requires the users who authored the content to be identified by name in the application for registration. If there are too many to name all, the application should list several authors and indicate the number of additional authors and the staff of the Copyright Office may ask for a more complete list to verify that the identification of authors of user-generated content has been maintained by the site owner. And any registration for the content on a website will pertain only to the particular version submitted with the application, so new matter added after registration will not be covered by the prior registration. Although it may be made available for display throughout the world, a website is considered an “unpublished work”, unless downloading or sharing of content is authorized.
The Compendium does not have the force of law and the Copyright Office has frankly stated that it has addressed unsettled areas in the hope that its reasoning will be considered persuasive should the issues be presented in future cases. But the Compendium does control how the Copyright Office will address applications for registration and a review of its provisions will assist applicants for copyright in avoiding common problems that can impede registration. It is readily available on the Copyright Office website, www.copyright.gov, and each chapter can be downloaded or accessed separately as a pdf.
Credit: Helene M. Freeman
A Meditation on the Necktie I
Posted: January 13, 2015 Filed under: Accessories, General / Musings, Menswear | Tags: neckties, tie, ties Comments Off on A Meditation on the Necktie I
For a very long time, men were accused of wearing uniforms to work; those were the days when great sartorial decisions came down to: will it be a blue suit or a gray suit today? That has changed with business casual, of course, leading to a revised question: will it be the khakis today or corduroys? That is why now, more than ever, the necktie is so important. Because the necktie is about the only thing a man wears that does not have a protective function, it is only discretionary item that a man can wear in the course of an ordinary day. Which is to say, the necktie is about the only thing that a guy can put on purely for styIe—to show a little bit of what he is about.
I have a brother who works in finance out of an office in the Palm Beach area, where wearing neckties is truly optional. On his last visit with me in New York, he had to borrow one in order to get through his Manhattan meeting schedule. He made off with a lovely yellow and blue striped piece from Peter Elliot (my neighborhood menswear boutique), and of course he promised to give it back. Now he says it is his favorite tie and he wears it often—or whatever passes for often in Palm Beach. For all I know, it is the only one in his closet that does not have Mickey Mouse on it. When am I getting my tie back? When it needs a cleaning, I suppose.
Credit: Alan Behr
Related Post: A Meditation on the Necktie II
Many Happy Returns
Posted: December 16, 2014 Filed under: Accessories, Childrenswear, Footwear, General / Musings, Menswear, Womenswear | Tags: retail, retailers, return policies Comments Off on Many Happy Returns
Over the years, retailers have liberalized their returns policies. I have been offered thirty days, ninety days, sometimes one hundred eighty days in which to receive forgiveness if I should change my mind. I have even been quietly assured that, if I sign up as a preferred customer, the returns privilege is open-ended, which I suppose means that you can bring back your bar mitzvah suit after you wear it a second time for your retirement party (as long as you have the receipt). Even if formal policy says no to a return, it may simply be ignored if you are polite about it and willing to accept a store credit as a compromise.
In part to soften customer concerns about the risks of buying online, retailers have made buying from the Internet into a shop at home service, making returns as easy as putting the product back into the box, sticking on a return label and sending it back from whence it came—sometimes at no additional cost. (Shoe purchases seem to be particularly blessed in that way.)
When the goods come from a boots-on-the-ground shopping experience, customers are increasingly becoming their own shop at home services, scooping up whatever looks promising (sometimes in alternative sizes and colors) and making final purchase decisions in the privacy of their own bedrooms. The result of all this back and forth is that is that, depending on the category, returns can equal as much as forty percent of a retailer’s sales—perhaps even more in seasonal spikes.
When an item is marked “final sale,” however, the retailer is saying: “I’ve had enough of all that; I really want this one to move; here it is at a very good price I would never otherwise accept; now take it and don’t ever let me see it again.” We can all understand why a no-returns policy makes sense for underwear. But consider this as well: every luxury retailer has stories about evening gowns returned the day after a well-publicized big event, fragrant with perfume. For the same reason, it is understandable why a jeweler would make returns difficult or even impossible—to avoid, that is, turning into a free lending library for expensive necklaces and bracelets.
So by all means, take advantage of final sale offers. (By definition, it is your last chance to buy the item anyway.) But keep in mind that there is no turning back when you do. Your moment as your own style consultant has come: if you buy it, you own it, so make sure you like it at point of sale.
A special, final and heartfelt warning: if you are a guy with a wife or girlfriend who examines what you wear as if your reputation and hers depended on it (How, you may ask, would I know of such a guy?), you had better bring her along, just to be sure. If she first sees it when you bring it home and on the spot offers an opinion along the lines of, “What were you thinking? Take that thing back!” it is no time for your response to start with, “Uh…”
Credit: Alan Behr
Decoding Suit Sales Talk
Posted: December 9, 2014 Filed under: General / Musings, Menswear | Tags: apparel, men's fashion, suits Comments Off on Decoding Suit Sales Talk
Sometimes we write here for the fashion crowd, and sometimes we write for the rest of us. So, regular guys—here are a couple quick points about what to watch out for when buying a suit:
If the suit is for business (and how many bought by anyone who is not a groom are anything but?), be careful when bringing along the lady in your life. She probably does dress herself better than you do yourself, but you are not dressing for her: mostly, you are dressing for your boss. If you bring your lady love, and the sales staff see her walking in ahead of you, they know from experience that they have to sell her, not you; the next thing you know, you become the mannequin for an ensemble of her creation. Unless you are dating Donna Karan or happen to bring along Miuccia Prada, do not let that happen to you.
Maybe you look great in brown or maroon. Nearly all proper business suits are “city colors,” which means blue or gray. Best to make your peace with that and move on.
Fit is everything. After you have tried on three or four suits, you will nearly always do best by going with the one that fits best before the tailor makes alterations. The shoulders are everything. If they work, the suit may have a chance; if they do not, try something else.
When in a fitting, put on both the trousers and the jacket. During the fitting, if the salesman or fitter asks, “Are you going to wear the jacket open or closed?” answer “Both,” and give back the suit you have on. You have just been discreetly informed that the jacket is too tight and cannot be altered to fit properly. If the salesman asks if you “have enough room” in the pants, he is hinting that they look too small. Make sure that there is enough extra cloth at the waist and in the seat to let them out properly or hand that one back too.
Conventional wisdom holds that, when you try on the suit and stand in it before the fitter’s triptych mirror, you should look not at the suit but at yourself—to understand how you look in it. That is not as easy to do in practice as it sounds. Lots of guys who try that just see their own faces staring back at them in bewilderment. Others, myself included, start to notice that the mirror adds an unpleasant green cast. So look at the suit, look at yourself, tilt your head up and look at the light fixtures, glower at the price tag—just keep looking until something clicks in your head that you like what you have on. And if that does not happen, take it off and try again with something else.
If you live in what in North America is the temperate zone, you are probably in a place where the difference between winter chill and summer heat is so extreme, you will need two separate suit wardrobes: one in winter weight and another in tropical weight. (A good rule of thumb is that a summer suit should have a weight of cloth of between about 7.5 ounces and—at a maximum—nine ounces.) There is a third option, invented by sales people, known as “year-round weight.” That applies, as needed by them (but not you), either to a summer-weight suit the sales person is trying to sell for winter or a winter-weight suit being pushed for summer. Wool does not change its thickness to preference. If you call the sales person out on it, you know that he or she is really having you on if the response goes: “You can wear it ten months of the year.” If that happens, vacate the area immediately and find someone who will give you a straight answer.
Finally, when fitting a suit: if you let the sales person and the fitter know how much you really like it, and you see that the reaction is guarded hesitation—ask them politely to come clean and also ask if the sales person can recommend an alternative. Together, they have likely seen plenty of these come and go, and if your test model does not work for them there and then, the chances are good that it will not work for you later.
There, that was easy. Next step—accessories!
Credit: Alan Behr
The Frostbite Award
Posted: December 2, 2014 Filed under: Accessories, Footwear, General / Musings | Tags: autumn, fall, fashion, footwear, winter Comments Off on The Frostbite Award
Each year, as winter approaches, I prepare for a presentation—solely in my own mind—of the Frostbite Award. That is the imaginary award that I give to the last person seen wearing flip flops in the course of a given autumn/winter season. Flip flops as working or commuting footwear have always been something of a mystery to me. Flip flops are, after all, beach sandals, but as urban footwear, the flip flop trend has had formidable staying power far north of the Tropic of Cancer. In spring/summer, I assume it is all about comfort, but how does that explain the continued presence of urban flip flops as the days shorten, the leaves fall, and even as the snows arrive? Only the recipient of the Annual Frostbite Award knows for sure—that brave, hearty urbanite who freezes from their toes to their heels in the name of style. We can only admire their perseverance.
Credit: Alan Behr
Photo Credit: placeboe (Creative Commons)
Zone Defense
Posted: September 16, 2014 Filed under: Employment & Labor, General / Musings | Tags: employee claims, employees, human capital, human resources, lawsuits, people management Comments Off on Zone Defense
Tips To Help Avoid Adverse Claims and Protect Your Company
In the Event of a Lawsuit
It is axiomatic that a successful business in the fashion industry requires close attention to detail and countless hours of work. While the threat of potential litigation should not be at the forefront of management’s thoughts, here are some tips to bear in mind to reduce your potential future exposure and to place your company in a better position to defend itself in the event it is faced with a lawsuit or a potential lawsuit:
- Notify your Insurance Carrier. If you are served with a Summons and Complaint, or are threatened with a lawsuit, notify your insurance carrier. If you fail to timely notify your insurance carrier it may deny coverage, and the company could be stuck with otherwise avoidable out-of-pocket defense and indemnification costs.
- Implement and Enforce an Anti-Harassment Policy. An affirmative defense may exist to protect the company from vicarious liability for certain sexual harassment/discrimination claims based upon actions by supervisors and co-employees if the company implements and enforces an anti-harassment/discrimination policy; exercises reasonable care to prevent and correct promptly any sexually harassing discriminatory behavior; and the employee unreasonably fails to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
- Two Company Representatives Should Participate in Disciplinary, Evaluation and Exit Interview Meetings With Employees. Many employment claims (or issues that may give rise to employment claims) can stem from a disciplinary meeting, employee evaluation or exit interview, when a company representative (whether the H.R. director or an immediate supervisor) informs an employee of job concerns, performance issues or that employment is being terminated. It is advisable for the company to have two company representatives at those meetings to be better able to confirm or deny what transpired (to avoid a “he said she said” scenario) in the event of a subsequent claim by the employee.
- Careful! Emails Are Not Private. Once a lawsuit is underway, the company will likely be required to turn over emails (or entire accounts) that may be relevant to the subject-matter of the lawsuit. So, the next time you send a personal email from your work account, be mindful of its content, especially if you don’t want some lawyer, like myself, reading about your personal life. Conversely, lawyers either prosecuting or defending a case are always looking for the “smoking gun.” So, before you click “Send”, make sure you are comfortable that, if a lawsuit arises, your email will not be the “smoking gun” that an opposing lawyer may be seeking.
- Keep Accurate Time Records of Non-Exempt Employees. It is not only statutorily required for employers to do so, but is critical to the defense of a Fair Labor Standards Act claim for unpaid (or underpaid) wages, to accurately keep and maintain time records of all non-exempt employees. If the company maintains accurate and orderly time records on a daily basis, you will not be in the position of having to scramble (or spend countless hours) compiling these crucial documents for your defense or trying to defend against an employee’s claim without potentially crucial documentary evidence.
- Avoid Spoliation Claims Arising From Destruction of Surveillance Videos. Sometimes a claim for spoliation will be made if relevant evidence has been intentionally or negligently destroyed. This can arise not only from the destruction of documents, but also when video surveillance captures relevant footage which is not retained. A possible defense here would be to ensure the company has thoroughly documented and enforced a recycling and retention procedure relating to the company’s surveillance.
The list above is generally focused in my practice areas of litigation. It is not intended to be, and in fact is far from, a comprehensive list. Each point merits its own blog post, which will likely follow in the near future.
Credit: Kathryn T. Lundy
Kathryn is an associate in Phillips Nizer’s Litigation Department and Labor & Employment Law Practice.
