The fashion industry has debated the effect of the Supreme Court’s 2017 decision in Star Athletica, LLC v. Varsity Brands, Inc., interpreting the Copyright Act’s rules for registration of two and three dimensional designs incorporated into useful objects, on the availability of copyright protection for fashion designs and accessories. There now appears to be an emerging consensus of finding copyright protection in circumstances where it might not have been previously expected. This is hardly surprising. What is surprising is that the Court’s decision may be impacting a key question that the Court side-stepped.
While Star Athletica resolved that an otherwise copyrightable design that is a part of a useful object could be the subject of copyright so long as it could be conceived independently of the object in which it was incorporated, the Court pointedly refused to decide whether the cheerleading uniform surface patterns were copyrightable under the rules applicable to all two and three dimensional designs. Chief among those rules is the requirement of “originality”.
The breadth of the potential impact of Star Athletica is reflected in the recent decision of the Copyright Office to issue copyright registrations to adidas for the Kanye West Yeezy Boost 350 and Yeezy Boost 350 Version 2 sneakers. The application for registration as a two dimensional design and a three dimensional sculpture had originally been refused on the ground that it was a useful article. A request for reconsideration of the refusal was filed and registration was again refused on the ground that the “simple shapes arranged into common and expected pattern in very simple color schemes” did not meet the originality requirement.
But on a second request for reconsideration, the Copyright Office reversed itself, concluding that under the test of Star Athletica the two and three dimensional aspects of the designs could be “perceived” as separate from the sneaker, the useful object on which the designs appear.
It also decided that given the very low standard for copyrightability, the designs’ lines, stripes and swirls, although individually not copyrightable, had been combined in a sufficiently distinctive manner so that the designs, when viewed as a whole, merited registration. The copyrightable combinations, as described by the Copyright Office, consisted of “irregular black lines of various lengths and shapes on a grey fabric with a black semi-circle in the arch and an orange dotted stripe on an off-white heel loop” in the case of version 1 and “several grey lines in a wave pattern with a thick orange stripe on the outsole that fades toward the heel” with an inner orange layer that adds “intermittent orange coloring” in the case of version 2.
In light of the Copyright Office’s decision to register the Yeezy 350 sneaker patterns, at least in their contrasting color ways, fashion brands should now consider seeking copyright registration for their important designs containing any variation beyond the most basic, unvaried stripes.
Credit: Helene M. Freeman
Read other blog posts related to Star Athletica, LLC v. Varsity Brands, Inc. here.
Law has always been among the most sartorially sophisticated professions. Its practitioners must always be representing not only themselves, but their firms, their clients, and even the dignity of the law itself. These imperatives, along with the generous means that are often a lawyer’s prerogative, have produced generations of well-appointed attorneys who appreciate good clothes and understand their power.
The relaxation of dress codes in even the most traditional law firms may have shifted the paradigm toward less imposing and more comfortable attire, but it hasn’t diminished the importance of presenting a professional impression. This can be difficult to pull off in the more subjective context of a casual workplace, and there’s nothing comfortable about finding oneself inappropriately attired. Alan recalls being stunned when one of the real estate lawyers handling the closing of his Fifth Avenue apartment showed up in khakis and a polo shirt — not because of any stylistic offense per se, but because such casual attire called into question the man’s judgment and authority to oversee such a important transaction.
It’s never a bad thing for a lawyer to be the most formally dressed person in a meeting — the grownup in the room, so to speak. While this once may have meant a dark three-piece suit, today it might mean a subtle sportcoat and well-chosen tie. Sartorial standards may shift, but lawyers benefit from maintaining a relative formality that helps them project the following timelessly essential professional qualities:
Trustworthiness – Whether being appraised by a judge, a jury, a client, or a senior partner, a lawyer’s attire should give an open and honest impression. This translates to well-tailored but simple, sober clothes that don’t attract attention to themselves, but rather serve the wearer by focusing attention on his or her face. The bolder patterns or brighter colors that an entrepreneur or an entertainer might favor with will tend to come across as flashy, distracting, and perhaps even suspicious when worn by counsel.
Thoroughness – Tailored clothing presents many opportunities to demonstrate one’s attention to detail. Nuances like a precise trouser break or a properly knotted necktie are subliminally impressive to even the least sartorially inclined among us; their mastery won’t come across as fussy or fogey, but rather refined and authoritative. A discrete pocket square is a polished touch, (especially in the increasingly common absence of a necktie) but it’s generally well-advised to steer clear of more fastidious or anachronistic details like collar pins and braces — at least until you’re more established in your career.
Gravitas – A lawyer’s attire should respect the seriousness of the law he or she practices, and the magnitude of the stakes for clients. A well-cut solid dark suit, a crisp white or light blue shirt, and an elegant tie is an admittedly formal but entirely appropriately ensemble to wear to what is essentially one of the highest ceremonies in secular society: a court of law. Not quite the white wig required in British courts, but the same idea: symbols of continuity that transcend whims of fashion.
There is certainly a long tradition of lawyers who enjoy deploying the full arsenal of menswear finery — e.g. double-breasted suits, waistcoats, watch chains — to make a statement and perhaps even a personal trademark, but such dandification is generally a prerogative of seniority at most firms, where high-style dressing is underwritten by proven professional records. If you’re not quite there yet, remember that more conservative dressing need not be dull. A restrained sartorial aesthetic can be highly elegant, emphasizing quality of material and perfection of cut over ostentatious flair or detail. Indeed, this was the mantra of the original dandy himself — the early 19th century English arbiter elegantiarum Beau Brummell, credited with creating the modern suit as a masculine rejection of the baroque gorgeousness that had characterized fashionable male dress for centuries. “If John Bull turns around to look at you,” he observed, “you are not well-dressed.”
A more relatable inspiration for lawyers — sartorial and otherwise — is of course To Kill a Mockingbird’s Atticus Finch, memorably portrayed by Gregory Peck in the 1962 film adaptation. Finch’s rumpled cotton three-piece suits might be better suited to a courtroom in Depression-era Alabama than one in Manhattan today, but their timeless appeal lies in their enobling effect — the way in which simple, unpretentious, yet dignified clothing can serve a man serving the law. Finch’s personal style is hardly mentioned in the story, but no reader or viewer will ever forget it. It’s an object lesson in how good clothes work.
Author: Andrew Yamato, Alan Flusser Custom
NOTE: Alan Flusser Custom will be exhibiting at the New York State Bar Association’s (NYSBA( Annual Meeting at the New York Hilton Midtown from January 15th through the 17th (2019).
As I have shared in two prior posts, I had the privilege of sitting down with the menswear authority, Alan Flusser, in his comfortable office inside his custom tailor shop in Manhattan, to hear his point of view on the status of men’s style. This being a legal blog, the conversation inevitably came around to what a lawyer should wear, and here again, Mr. Flusser was both precise and definite:
“I went to a closing on an apartment, and counsel for the other party showed up in a polo shirt and khakis. I’d never met him before, and I would hardly recommend that you come in looking like that, trying to show you have the know-how and authority to oversee a transaction well north of a million dollars. But that is the lay of the land today.”
“Is that advice for everyone or are you pointing to the legal profession when you say that?” I asked.
“Everybody could benefit from learning some of the fundamentals that go into putting together the basic elements of style in a way that makes the right impression. That is particularly true for a lawyer, who has to explain important things to people in a convincing manner. The kind of clothes he wears and—just as important—the way he wears those clothes can go a long way in terms of helping him present his case to his opponents, to a judge, and, indeed, to his clients. There’s a certain confidence that can be projected by a person who knows how to wear clothes correctly.”
“Are you arguing for tradition?” I asked. “When I was a boy, we were told that, by the time you and I would be sitting here, everyone would be dressed in something like the outfits on the original Star Trek series.
Mr. Flusser smiled. “I worked for Pierre Cardin in the 70s.” That was a name from my sartorial past. I recalled that the three first suits I bought as an adult, while then in college, bore the Pierre Cardin label. They were made in Latin America and had lapels wide enough to cause me to take flight if the winds were right—but such were the times. “Pierre Cardin was one of these very avant-garde designers,” continued Mr. Flusser, “who said that, by the turn of this century, everyone would be wearing jumpsuits to go to the moon. Since then, people have been attempting to uproot, upend or debunk the necessity for wearing a suit, dress shirt and tie, trying to replace that with something else. Look around. As far I see, that that’s been a complete failure.”
Which is to say, it is a lot harder for you to look inconsequential in a suit, dress shirt and necktie even if not entirely spot on, than in a polo shirt and khakis, even if done not half-bad. Just the same, as Mr. Flusser next observed, once you commit to making the effort, you should commit as well to making sure it succeeds: “Whatever you do, the question is, why go to all the trouble to get gussied up in this if it takes no more effort to put on clothing that fits and is correctly proportioned for you?”
I asked if there is a good role model who shows lawyers how to do it just right. That turned out to be another easy question:
“I have been writing about it for decades, but very few men know how to tie a tie and put it up into a collar and have it come out looking as good as it could—that is, the difference between looking powerful or not—or possibly making you look weaker. Where can you learn that? You either have to see it on another man or you have someone in the public eye espousing this kind of dress. If I had a moment to ask any question of former President Barack Obama, I would probably first ask him, ‘How did you learn to wear shirts that have the exact and perfect collar for someone of your size and height and face shape, and how did you learn to tie the necktie to go up into that and to make that presentation as perfect as it has ever been on any president?’ Clearly, somebody taught him that at some point because you don’t usually pick that up as a community organizer.”
In short, to my colleagues at the bar: your legal knowledge, skills and personality may take you far, but pick up Mr. Flusser’s books, see him personally, or hunt down someone else who knows how and is ready to show you the way. That may not carry the day for you in contract negotiations or in a summation before the jury—but it will almost certainly offer you just a bit more of an advantage than you otherwise have had. And no one who seriously wishes to make it in this difficult profession should lightly pass up such an opportunity.
Credit: Alan Behr
We would like to thank Alan Flusser for his gracious participation in our three-part series on fashion, style and the industry’s influence on today’s design aesthetic. | https://alanflusser.com/
See post…”Alan Flusser – Part 1: A Question of Balance”
“One of the principles that I teach is that clothes should lead the eye of the viewer to the face of the person wearing the clothes. That’s particularly important in the legal profession, where you do a lot of communicating.” Hardly had I started my conversation with Alan Flusser, who is one of the premier custom tailors on this side of the Atlantic, when I was the recipient of such good advice. I had come to Mr. Flusser’s shop, in midtown Manhattan, with a three-button jacket he had made for me so long ago that I had missed a fitting on the morning of 9/11 (for quite obvious reasons). Although it had been worn often, Mr. Flusser and his team had just returned the altered piece to me looking as if it had left the workroom for the first time. Not only had it been recut for my late-blooming athletic physique (I had at long last learned to sit less and to pump more iron), but shorter and now boasting a pinched-in waist, it was also quite au courant. A hidden benefit of quality custom-tailoring is economy: every off-the-rack garment I owned back then has long ago been sent away.
With that good start behind me, I joined Mr. Flusser in the office of his shop. Mr. Flusser sat in one of his guest chairs, appearing at ease in an open-collared shirt, unbuttoned jacket and casual shoes minus socks. With my notes spread in front of me, I probably looked to him like a defense lawyer trying to impress a trial judge. He continued: “What is closest to the face is the dress shirt collar. You should look at it as a painting and a frame—your head is the painting and you are trying to give it a frame that complements your face but doesn’t distract from it. The criteria for making the decisions about that—the size of your chin and the shape of your head, for example—are not changeable or subject to fashion. So if you discover what kind of dress shirt collar best presents your face, and build on that, what you figure out will stay with you for the rest of your life.”
When I asked what was the most common collar mistake, his answer was immediate: “Most men wear dress shirt collars that are too small for their faces. If you are 5’10” or above, the likelihood is that you will be wearing a dress shirt that does not sit tall enough on your neck. Instead, the dress shirt decorates the bottom half of your neck, and if you add a necktie, it will look like a dead fish hanging around your neck. That has nothing to do with fashion. It only has to do with your own physiology. And it’s not about knowing how much you should pay for something. It costs no more to wear a shirt with a collar that is appropriate for you than not. If you don’t wish to spend a lot of money, but you understand what works for you, it will look just fine. All of this is just about knowledge.”
Feeling my moment of reckoning had come, I noted the obvious: that I have a large head and a wrestler’s neck. My shirt collar was tall enough, it turned out—but that was just the start of the conversation. Before I knew it, Mr. Flusser had unfastened my tie in order to relieve it of the Windsor knot I have been using since I was a first-year associate and retied it with a more rakish four in hand. “Much better,” he said, and then he replaced my machine-finished pocket square with a proper French-made, hand-rolled model. It all came together just so. And that is what style is really about: helping you look your best, not the best of someone seen in a magazine or on a social media page.
Credit: Alan Behr
Alan Flusser maintains his custom atelier at 3 East 48th Street in New York City. He is the author of “Dressing the Man: Mastering the Art of Permanent Fashion” and other works about men’s style. (www.alanflusser.com)
The beaches of summer remind us that it is no disrespect for any of us to confess that most people do not look their best in swimwear and that those who do probably would look great in just about anything. Simply, the more the body is revealed, the more the aesthetic duties that are commonly undertaken by fashion are left to uncovered skin. Call it a triumph of artifice over nature, but for most of us, more clothing, rather than less clothing, even on the beach, is often a good thing. Fashion may make the great-looking come across even greater, but it is often a turning point, in the direction of great, for the rest of us in how we present ourselves to the world.
My colleagues and I have been writing and speaking quite a bit this year about the Star Athletica case—the Supreme Court decision that turned cheerleader uniforms into the biggest issue in fashion law in years. (Law is made by the cases actually brought, and this one just happened to be about uniforms worn by cheerleaders, but by its potential impact, you might well imagine the clothes were couture evening wear.) If nothing else, the case reaffirmed (that is, it did not change) the fact that, in the USA, anything functional in fashion cannot be protected by copyright registration (or with a design patent). When applied to swimwear, which typically represents about the minimum that the law allows any of us to wear in public, whatever precious square inches of cloth are involved almost always serve some kind of function. Finding something protectable in what is there can involve examining decorative clasps, closures and add-ons—but minimalism is the essence of swimsuit design, and such design elaborations are quite rare. That leaves for examination whatever small amount of fabric is actually in use.
As we have noted in these pages before, fabric patterns are protectable, and here, Star Athletica may be helpful in providing guidance. The Supreme Court has now told us that we need only look at a fabric pattern laid flat (in reality or imagination) to view it as we would any two-dimensional artwork to determine if it is original enough to be protectable by copyright. The shape into which it is cut—as swim trunks or a bikini, for example—is irrelevant. That is good news for fabric designers. It confirms that it does not matter how little of the design is there to see: if it is original and visible, it is theoretically protectable.
During the 4th of July weekend, I heard a young man compliment another, his tennis partner, on baggy swim trunks and a matching baseball hat—both made of blue cloth filled with an exaggerated white pattern that looked like multiple slash marks. At a pool the day before, a woman was similarly complimented for a black bikini that had small but intricate white designs only on the cloth that just about covered her right hip and left breast. If any of that is original, it may well be protectable.
Does that mean it is getting harder for a fashion company to know if a fabric being offered to it for use in garments is potentially infringing on the rights of others? Does it mean you have to worry about some design that would not fill the space that could be occupied by a chocolate-chip cookie? Unfortunately, that is likely the case. Where that next takes us is for the courts to decide—but not for now. Summer is here and many of those people you will see on the beach are copyright lawyers and judges, putting much of this behind them until fall.
Credit: Alan Behr
Pose! Click! Flash! Those are just a few of the sights and sounds of Fashion Week, an exciting time here in New York City. I had the privilege of attending one of the week’s first events–PH5’s Presentation at Bortolami Gallery in Chelsea.
I was awed by the entire experience–stark white walls adorned with giant white balloons set against a row of willowy models in unique and colorful knits and clear plastic above-the-knee boots. As the models stood in mannequin-like pose on small white pedestals, cameras went off at lightning speed and reporters surrounded designer Mijia Zhang and owner Wei Lin. Others, many of them dressed to perfection, crowded into the gallery to see the looks–and look over each other. The energy was high and fast.
After some gawking and conversation over maple water, the onlookers drifted out and the room cleared just as quickly as it had filled up. It was then that I was struck how much the show reminded me of Christmas morning when the kids tear through numerous well-wrapped gifts in literally minutes. After all of the time-consuming preparations in browsing, choosing and wrapping gifts and placing them under the trimmed tree, the excitement is over in a matter of minutes. The same is true of a fashion show.
I thought of all of the hard work Wei, Mijia and their team put into making the excitement of the show. From choosing a brand, to designing the clothes, selecting eye-catching fabrics, obtaining quality manufacturers and selecting the “right” models, space and décor, the coordination is overwhelming.
As a lawyer, my mind, of course, then jumped to the “dark side.” The months of planning to over-in-minutes analogy made me think of how quickly PH5’s designs could be ripped off. We do not have copyright protection for clothing designs in the United States so copying is not only inevitable but also permitted. I have heard many a designer tell me about the frustration they experience when all of the time, effort and money they expend to create a line of clothes can be out the door in minutes when photos of fresh clothing are sent overseas and copied instantly. A few years ago, bills were introduced in Congress to give limited protection to clothing designs but they never made it anywhere. As a result, the copying continues, at least in the U.S., at the same frantic pace as Fashion Week. Some countries like France guard their famous designers by protecting clothing designs.
Some designers with novel fabrics may be luckier than others. For example, PH5 has what the Daily Beast calls “technically sophisticated knits” which can be protected by copyright. Original fabric designs are protected by copyright in the U.S., which does help alleviate the created today, knocked off tomorrow syndrome. Whether a design qualifies for protection is a question to raise with counsel—well enough before the fashion show starts—in order to help gain a measure of legal (and therefore business) advantage over makers of knock-offs.
Credit: Monica P. McCabe