Not My Bag(gy)

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

Photo Credit/Source: John Oxley Library, State Library of Queensland (Creative Commons)


The Curious Case of the Cheerleader Uniforms

Cheerleader-with single focus

One of the hot topics du jour in the fashion press is the copyright battle in the Supreme Court involving cheerleader uniforms. It poses the question of when a two-dimensional design that is part of a useful article is copyrightable—in this case, designs consisting of color blocks, chevrons, and lines in uniforms for cheerleaders. The Copyright Act provides that a “useful article” is not copyrightable, but it allows for copyright in the “pictorial, graphic and sculptural” features of useful objects as long as those features are “separable” from and can exist independently of the object itself.

Under the statutory definition, you can secure a copyright for a fabric or lace design, but you cannot secure a copyright in a dress made with the fabric or lace. An artist who draws a dress can secure a copyright in the drawing and can prevent someone from using it on greeting cards or wastebaskets, but the artist cannot use the copyright to prevent anyone from actually making the dress depicted in the drawing.

Although the concept of separability is easy to state in the abstract, at times it has been hard to apply in practice. Cheerleader uniforms present a particularly difficult problem. The designs here are not printed on the fabrics used in the uniforms. They are part of the garment’s construction. The placement of the design features—color piping around the neckline and arm holes, lines down the sides in color blocks, chevrons in the center, lines marking the boundaries between blocks of color—results from the contours of the garments. The placement also serves the functional purposes of hiding seams that are sewn on the outside (instead of the inside) of the garments to prevent chafing, strengthening parts of the garments so that they hold their shape, and creating optical illusions that lengthen the torso and slim the waist. The designs also help make the garments recognizable as uniforms and not street clothing.

The challenger, Star Athletica, focuses on those functional considerations and argues that the designs are inherent in the useful objects and do not exist independently. It argues that, if the designs have any function, they are not separable from the uniforms.

The United States and Varsity Brands, the copyright owner, argue that, because the graphic designs can be applied to products other than dresses, they are separable, can exist independently and are therefore copyrightable. The government further argues that the Copyright Office cannot be in the business of determining how any particular two-dimensional design functions in any given context when called upon to determine whether it can indeed exist independently. Under that argument, any two-dimensional design could potentially be deemed independent and separable from the three-dimensional objects to which it is applied.

In a great irony, the case was argued before the Supreme Court on Halloween. Halloween costumes frequently have been the subject of litigation under the particular provisions of the Copyright Act at issue in the case. (In case you are wondering, under current precedent, costumes are generally not copyrightable, but masks generally are.)

Reading the oral argument before the Supreme Court and the briefs, I was struck by the fact that the case is not unlike the famous figure ground optical illusion in which you can simultaneously see either a goblet or the profile of two faces. Star Athletica sees the goblet. If the lines define the goblet, it is the design of a useful object, and Varsity Brands cannot prevent Star from making the goblet. But Varsity Brands and the government see the profile pictures, which are separable, and it would be irrelevant whether they also define a goblet from the perspective of another viewer.

Stanford Law School Professor Mark Lemley, as the lead author of a brief submitted by a number of law professors in support of Star Athletica, attempts to separate the figure from the ground. He argues that copyright could protect the designs, but not the coordination and arrangement (i.e. placement) of the elements of the designs that result from the shape or construction of the garments. In effect, this proposed test would exclude from the protection of copyright those elements of the designs dictated by the needs of making the useful article truly useful.

There are other relevant questions that none of the lower courts in the case considered and which none of the briefs submitted to the Supreme Court addressed: What are the two-dimensional designs that are protected and are those designs copyrightable under more general principles of copyright law? Are they original or are they in the public domain? Is there a merger of the general idea with its expression so that there is nothing that is copyrightable? Are the decorative aspects what copyright law refers to as “scènes à faire” (stock representations implicit in the subject matter, in this case cheerleader uniforms)? Both the trial court and the appellate court expressly said they were not addressing whether the two-dimensional designs were copyrightable and were reserving that question. And the Supreme Court, in accepting the case, refused to consider this question, because it was not ruled on below.

Justice Elena Kagan inquired at argument: What is your design; can someone just add another stripe to avoid infringement? Varsity Brands’ counsel did not address the first part of the question and, in response to the second part, said that merely adding something to a copyrightable design “usually” does not avoid infringement. The response did little to address the Court’s expressed concern for the anti-competitive effect on the market for cheerleader uniforms and markets for other products for which the design has a functional purpose, such as camouflage fabric for military use. Indeed, it is worth noting that Star Athletica made a point of informing the Court that Varsity Brands controls 80% of the U.S. market for cheerleader uniforms.

That may help explain why all of the Supreme Court Justices who asked questions were troubled by the idea of handing Varsity Brands a monopoly over cheerleader uniform designs through the use of its copyright registrations. How they might avoid that result is an open question. Star Athletica offered one alternative that might have a major impact on the fashion industry, particularly on the accessories market, where protection of three-dimensional designs is an on-going concern: Any aspect of the design that is functional in part is not conceptually separable. (Say goodbye to the Kieselstein-Cord belt buckle decision, a ground-breaking case won by this firm and which a number of briefs argued was wrongly decided.) Another alternative, endorsed by the American Intellectual Property Association, is to vacate the decision and instruct the court below to determine first the validity of the copyright in the designs under more general copyright law concepts that would factor into the analysis the use of routine design features in uniforms. Either way, one suspects that Star Athletica’s use of its copyrights to prevent competition in the cheerleader uniform market may be short lived.

Credit: Helene M. Freeman

Here’s a previous post that may be of interest…

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Let Us All Cheer On The Supreme Court Of The United States

Supreme Court Of The United States of America

Every autumn, at my high school in New Orleans, for many, education was made to stand in line behind football. Ordinarily, in the heat and humidity of The Big Easy, any kind of activity beyond that needed to populate bars and strip clubs was considered unnecessary and even dangerous. (The older brother of a good friend died of heat stroke from playing high school football.)

And yet football, that proud exception to the rule, was worshiped every autumn. If the players were the priests of this brawny faith, what did that make the cheerleaders? The nuns? For their habits, the girls wore blue and yellow uniforms that were both comfortable and amenable to much athleticism, the requirements for the job being lots of jumping, pom-pom pushing and the occasional lift and twist into a fully inverted position. The garments were not all that successful in wicking away moisture, and the girls made quite an effort to maintain the required posture of irrepressible enthusiasm—while battling cascading perspiration.

That comes to mind as we consider that the Supreme Court has just agreed to hear an appeal from a copyright case about cheerleader uniforms: Varsity Brands, Inc. et al., v. Star Athletica, LLC. The Supreme Court rarely accepts copyright cases—it will accept one every few years—and barely will the Cheerleaders Uniformdecision have been announced before a cascade of articles by professors, lawyers, law students and the lay press will appear to interpret it and opine on its implications for the freedom of expression and the business of expression.

As the case currently stands, the Court of Appeals for the Sixth Circuit, in an appeal from a district court in western Tennessee, has ruled that simple designs on cheerleading uniforms consisting largely of “stripes, chevrons, zigzags, and colorblocks” are protectable by copyright. The court noted the basic rule, which we have discussed on these pages, that, “the Copyright Act protects fabric designs, but not dress designs.” The court went on to say, “Because we believe that the graphic features of Varsity’s cheerleading-uniform designs are more like fabric design than dress design, we hold that they are protectable subject matter under the Copyright Act…as pictorial, graphic, or sculptural works.” Functionality, such as wicking away all that perspiration, proved not to be a consideration for the court.

The court also rejected the argument of the defendant that the designs in question simply represented by the cheerleading uniform should be unprotected. There are just so many ways to make a uniform for an adolescent girl look like she is a cheerleader by the uniform alone—without, that is, making her shake her pompoms until you get the point. Although there may indeed be characteristics common to most cheerleading uniforms, those stripes, chevrons, zigzags and colorblocks, when sewn into a dress, were sufficiently unique as to warrant protection as a copyrightable design.

What the Supreme Court will be reviewing is quite specific: the standard employed by the court in determining how to separate (only conceptually because it cannot be removed physically in these fashion cases), a two-dimensional design from the functional garment on which it is placed in order to examine whether it is protectable by copyright. The lower court previously examined nine such standards (or “tests,” as they are often called) that have been floated or actually used and then went on to adopt one of its own invention, formed around five questions it asked itself.

The adage that the Supreme Court does not accept cases in order to affirm them may possibly apply here, but with its own tenth test now on the books (by the Sixth Circuit’s reckoning), it also seems quite possible that we will either be seeing the embrace of one of the prior nine or will be presented with an eleventh that will potentially replace all its predecessors nationwide.

And that, in short, throws open for speculation whether, in applying the test the Supreme Court will enunciate, the lower courts will still hold that uniform designs such as those at issue in this particular case are subject to copyright protection. Whatever the outcome on that point, the general rule does not appear in any way in danger: at least for the purposes of copyright, in the USA, copying a dress pattern (but not necessarily the pattern of the fabric itself) is largely permissible. The rest, as in so much about both fashion and law, is all about the details.

Credit: Alan Behr

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