My partner Helene Freeman has offered her reflections on these pages about the recent Supreme Court opinion in Star Athletica, L. L. C. v. Varsity Brands, Inc., commonly known as the cheerleader uniform case. Our Fashion Practice held a seminar recently for the industry where Helene provided further thoughts based on her posts, and I provided some practical considerations based on the court’s ruling. Here is a brief summary.
The key point to remember is that the Supreme Court has greatly simplified how you look at cases of apparel and accessory copyrights and claimed infringement. Because the case involved fabric patterns, I will limit my discussion to them, but there are broader implications, from belt buckles to furniture. The bottom line is this: from now on, we will not examine the garment itself, just the surface design. It no longer matters that, if you take stripes, chevrons and other familiar cheerleader-uniform patterns off the uniform, all you have left is a tennis dress–that is, something with a different function from a cheerleader uniform. All we need do is look at the pattern on the fabric used to make the dress, as if it were unrolled from a bolt of cloth and laid flat. In fact, it does not even matter if a cutter snips pieces from the bolt into a recognizable shape of a dress. It’s the design of the fabric, and just that design, that matters from now on.
That possibly makes even more important the question that the Supreme Court sent back for consideration by the trial court: whether the design that was allegedly copied embodied enough original expression to warrant protection by copyright. The rule is that even modest creativity, when fixed in a creative work, is protectable by copyright. (All you haiku writers, take heart.) Using neckties from several makers and nations as an example, I showed our conference attendees that original variations to familiar patterns (such as bees and starbursts) could be protectable. Even if what results is a “thin” copyright, it is still enforceable.
That leads to a follow-on reflection: There being no central database of protected designs, and with fabric designs now being viewed as if standing alone, as some kind of sartorial Ding an sich (a “thing in itself” in Kantian philosophy), if you have a pattern that looks like it might be original, and if you intend to spend time and money using it to make clothing (or other products), now, more than ever, it is important that you seek copyright registration–and that you discuss your options with counsel. Because the cut of the cloth and claimed usefulness (as in, “Those look like the kind of stripes I would find on a cheerleader uniform.”) are now irrelevant for copyright purposes, you will have to undertake your analysis in a field of potential risk beyond that formed by the goods you are making. Using cheerleader uniforms as an example once more: stripes and chevrons on those uniforms, if upheld as protectable by copyright, could, in theory, be infringed upon not merely by designs on competing uniforms but also by fabric designs on anything that is nonfunctional (such as a purely decorative wall hanging) or functional (such as neckties, carpets and sofas).
That brings us again to our favorite money-saving advice: discuss these issues with knowledgeable counsel before you invest your time and money. In the law, that ounce of prevention is worth at least a ton of cure.
Credit: Alan Behr
It had to happen, and it did in, of all places, The Wall Street Journal. Late in February, Jacob Gallagher contributed an article persuasively advocating for a new appreciation of baggy pants. Even as The New York Times obsessively writes about President Trump (Not long after the inauguration, I counted twenty-six pieces revisited to him on The Times‘ home page.), here comes the more conservatively leaning Journal to bring us news we can use: the ins and outs of wearing slouchy trousers.
Menswear runs in somewhat erratic cycles, with lean and trim tailoring having been the look in (roughly speaking) the years following WWI and the 1960s and much of this century, with looser cuts, often led by trousers with pleats, having been in vogue in the decades in between. Risking a generalization, when youth dominates fashion and popular culture, slim is in. Consider The Beatles and all those earnest young and lesser bands of our present era. Giorgio Armani rose to fame when he helped end that earlier cycle with his looser cut suits that draped, rather than seemingly adhered to, Richard Gere in American Gigolo (1980). In his Journal story, Jacob Gallagher quoted Patrick Grant, the designer for E. Tautz (London): “A lot of people are just not built for skinny trousers, particularly those of us who have a few years under our belt.”
All well and true, except when it isn’t. As Mr. Gallagher just barely hinted, baggy is hard to pull off if you are what he politely termed “vertically challenged”—which is to say, you can all too easily end up looking like a bar mitzvah boy forced to wear one of his father’s suits. I am not short but not anywhere near tall and not in my first youth. Having slimmed down to my high school weight and buffed up in the gym, however, I slide into the trim, Italian-inspired Brooks Brothers Milano cut like a cartridge into a revolver breech. My London tailor, Henry Poole & Co., had to snip my pattern down to comply with the requirements of my new physique. I trimmed the trousers of the Henry Poole suits already in my wardrobe and have gone down two waist sizes, even as I only buy slim cuts in casual wear. A leading fashion stylist who had worked hard in the svelte-deprived ’90s to get me to puff out now says I look great while deflated back to slim. Who wants to upset that?
And so: a thank you to The Journal for letting me know that slouchy has again gone mainstream. This time, I am having none of it. As I said in these pages before, I realized late in life (as a Uniqlo customer), that I have the taste and build of a Japanese teenager. Every other guy can and, if it strikes him as correct, go baggier than Bozo. This fit but not so tall guy is sticking with the trim cut that suits him best.
As my partner Helene Freeman has blogged, we await word from the Supreme Court about what standard will be used to determine what designs on cheerleader uniforms are properly protectable by copyright. (Star Athletica, LLC v. Varsity Brands, Inc., et al.). That case could have wide implications for anyone whose after-school activities include jumping up and down in decorated tennis dresses in front of football bleachers—and potentially for many others as well. The debate on the cut of trousers, shirts and jackets will, happily, be unaffected. In the USA, despite sincere efforts to change the law, the pattern (outline) of a garment is unprotected as long as it is a functional element—which it nearly always is. Designers and their customers have free reign to go baggy or keep it lean, without interference by lawyers or judges. The question, I am happy to report, is one of taste, not of jurisprudence, at least under American law. Apply your own style sense or consult your own personal stylist, and best wishes with that.
Credit: Alan Behr
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
A young lawyer walked by while working late, waving the striped tie he had just removed, announcing that, after 9:00 p.m., business casual was mandatory. European-born, my colleague’s tie had blue, white and green stripes angled downward from left to right (as seen by the wearer), in the classic British (and predominantly European) tradition. In Britain, the convention developed that, just as each clan in Scotland has its own tartan, each regiment, club and school would likely have its own, distinctive, diagonally striped tie.
On not quite as classic but by now traditional American ties, however, diagonal stripes run in the opposite direction, from right to left. There are various stories about why that is so. As with anything you can find on the Internet, you can discover much that is of interest, some of which might even prove to be true. You may learn, for instance, that the reason the ties slant in different directions is that European infantrymen shouldered their weapons differently from Americans and that their rifles ejected spent casings in an opposite direction. Those explanations are not only fogged by inaccuracy but bear little evidence of good fashion sense.
More credible is the claim by Brooks Brothers that it invented the American right to left downward slide on what it calls a Repp tie (freely admitting that an early spelling error caused it to get wrong the name of the French Rep ribbed silk fabric it used to make the ties). The idea was to bring American “roguish charm” to British tradition–an act that, as is often the case when Americans reference British traditions–acts as both homage and gentle satire. The British officers and gentlemen men who earned the right to wear regimental colors around their necks sometimes being quite sensitive about having earned the exclusive right to that privilege, Brooks Brothers reversed the direction of the stripe in an effort to soothe warrior sensitivities.
American schools have their Repp variations. My American university’s thick-striped tie, in navy blue and burgundy, is guaranteed to dull down almost any suit that goes with it.
The striped tie having now been commonplace for over a century, uncountable combinations of alternating stripe widths and colors have been used. A designer looking to protect his or her intellectual property rights in the patterns of ties may theoretically create a novel combination of colors and widths running in either direction–just enough to warrant a claim for copyright protection. Given the multiplicity of existing designs, that protection, if granted, would likely be a “thin copyright,” but in theory it could happen. The larger question is: why bother? Individual styles rarely last more than one season, after all. Would you really sue to protect the design, hoping the defendant does not dig into neckwear history to find something similar warn by officers of a British regiment since before it fought in the Battle of the Somme?
Each of those regimental, school and club ties identifies a source of origin–raising the possibility that a particular pattern of stripes can be protected as a trademark. As a practical matter, unless a stripe acquires such distinctiveness that the market accepts that it designates a specific source and so is not merely decorative, it is probably not protectable as a trademark. It is possible, again in theory, that a particular pattern of stripes could gain “secondary meaning.” That is, they now serve, through usage, advertising and the passage of time, as branding and devices not merely as pleasing patterns. If that should happen, is it indeed enough of a difference to prevent a claim of infringement to run the same pattern in the opposite direction, just as Brooks Brothers and other American makers did in order to distinguish their patterns from those British ties from which they freely borrowed both conventions and patterns? Much could depend on survey evidence of consumer habits and consumer awareness of the differences. That is another way of saying: if you did not know about all that before reading this post, the difference in the direction of the stripes probably is of no consequence to you; your response to the survey would therefore likely aid the plaintiff in a claim that simply changing the direction of the stripes did not make the defendant’s pattern less likely to cause infringing confusion.
That would support the generally held view that, when it comes to neckties, diagonal stripes, in whatever direction they run, are, in nearly all situations, open territory for designers. Within the quite narrow sartorial conventions of male business attire, however, there is not really all that much new that can likely be done with diagonal stripes in neckties. So, let us all celebrate an ongoing tradition and try not to worry too much about all this. A good striped tie will not necessarily be the one that a lawyer attempts to protect as intellectual property. It will, however, always be one that will work for him just about anywhere.
We would like to thank Stephen Sidkin of Fox Williams LLP, London, UK, for providing the inspiration and background for this post.
Credit: Alan Behr
We have commented here before that the necktie is the surviving element of the male wardrobe that is purely decorative. If it is true that form follows function, there is no prescribed form for an accessory that, by definition, is completely without function. For that reason, you can make it a classic neck to waist cravat, go for a Pharrell bowtie, or go for a turquoise-clasped bolo — at least if you are from the West.
Cloth ties can come in any width, as long as you can close them and they do not rub into your face or flap into your arms. When I was young, my father was friends with George Goldman, a legendary New York necktie manufacturing impressario, back when most ties sold in the USA were made there. I remember when my father came home from a meeting with George, bearing a fistful of thin neckties –only to note, not long after, that they had slipped out of fashion. The Mad Men age was over, taking with it the thin tie and long-accepted business terms such as “career girl” and “make it a double.”
Ties next grew wide, to the point of obesity, during the following decade. And then, thanks to the temperate good taste of designers such as Giorgio Armani and Ralph Lauren, ties went to the gym and trimmed down. And then, wouldn’t you know it: the thin tie, now known by its workout-sanctioned name of the skinny tie, returned, along with thin lapels.
Because it has become tough to say what is “correct” in business wear of late, those of us who pay attention to these things keep two tie collections, one in the moderate ninety-centimeter width of the classic Kiton seven-fold and the other in the anorexic sixty centimeter width of the just-discontinued Brooks Brothers Black Fleece line designed by Thom Browne. And to think: all that fuss over something that most men working in offices and classrooms do not even make part of their daily wardrobes anymore.
This rolling in and out of necktie widths throughout the decades illustrates another key element of fashion law: it is of no matter if you were the first to bring back the skinny tie or even if you found a way to make them from thermal-insulated cloth for inclement winter days. You will not get intellectual property protection for the shape and other physical characteristics of any tie in any form that we know at this time that the market will accept. However, it is still possible to obtain protection on the pattern of the tie fabric, if it is truly unique. Considering the way that trends go and come and that, in the 1970s, chunky ties appeared with elaborate printed scenes to fill out their broad canvases, if your vision is of a complete Tahitian village or perhaps of a new interpretation of the Judgment of Paris, your day may soon be here. And if your designs are truly unique, you can register your copyrights. Those neckties will not have any more use than the ones you see today, but their designs will be exclusively yours.
Credit: Alan Behr
While attending the annual meeting of the Copyright Society of the USA in Newport, Rhode Island last year, I walked into a military surplus store and came out the owner of a Swiss military field jacket. I had found a row of them crowded into a single rack. All were a bit malodorous (often a hazard when buying often questionably stored surplus clothes), and although none bore a size label, all were unworn. The first one I tried on fit almost as well as something my tailor might have done up for me, and so, sacrificing the eight-dollar purchase price, I took it home. Much of the summer was occupied with airing it out, but with the first chill of autumn, I wore it on the streets of Manhattan.
It hardly drew a notice from my dinner companion that evening, which was a bit discouraging because she was Swiss. But the payoff came next time out, during a horrid day of wind, chill and rain. The jacket, intended to keep hearty Swiss conscripts dry and toasty in the worst Alpine weather, answered its calling brilliantly. Weaving among New Yorkers who stomped along in the wet ground as if persecuted, I kept up a merry pace, as warm as if I were wearing a space heater. I thought that the nipped-waist, gray-green, single-breasted, many-pocketed jacket, which would have enabled me to blend in seamlessly in an Alpine pine forest, was also quite stylish. It was undeniably practical: there was even space for a Swiss Army knife. But when my prize at last emerged from the foul weather again to rest under the sweet lights of home, my wife had this to say: “Where did you get that ugly jacket?”
That intramural sartorial challenge next led me to a website where I found a green German policeman’s jacket. This wardrobe caprice set me back a relatively dear eleven dollars plus shipping. Also unworn, it bore the fading hang tag of its manufacturer under the name it was called during the days it was a state-run enterprise in East Germany. The jacket appeared to date, however, from a time near the end of the last century when the cops in the German state of its origin (Mecklenburg-Vorpommern to you geography buffs) switched to much cooler SWAT-team coats of blue. Indeed, these green jackets do tend to make even the most warlike German Polizist look like a bureaucrat—which might well have been the intention in a nation grown uncomfortable with symbols of armed authority.
This time, the outerwear debut took place in the parents’ lounge of the Deutsche Sprachschule (German Language School) attended by my first grader on Saturday mornings. Everyone recognized it, and I got quite a few compliments, but a room full of German expats is not exactly a statistically supportable random sample for this stylistic boundary-pusher. As my son and I were heading up Lexington Avenue on our way home, we saw Eliot Rabin, who owns and designs menswear for the sophisticated Peter Elliot stores. He was busy on his mobile phone, but the moment he saw us, he excused himself to his caller, put down the phone and ran over to say, “That’s a great jacket.”
I was suddenly feeling the kind of confidence in my taste that is unmatched by any male who has not done a turn as the GQ Style Guy. As my wife opened the door for us and caught first sight of my new success, she said, “Where did you get that ugly jacket?”
So much for the old spousal imprimatur. I’ll take that under advisement–even as I troll the web for something chic in a size 38 that is a leftover from the Soviet navy.
Credit: Alan Behr