Entertainment & Sports Law Interview

For those not familiar with fashion law, what areas/needs are covered under these specialties?
Fashion law includes principles from a variety of legal disciplines. The most prevalent types of law that arise in the fashion industry are protection of intellectual property such as trademarks, commercial operations, business law including business formation and structure, contracts, employment law, real estate law and licensing.

How did you decide to practice in this field?
My areas of practice include entertainment law, and fashion law is really just the other side of the same coin. Just think…there is music on the runway…private labels or businesses for independent musicians and fashion designers. In some cases, creatives such as fashion designers, fashion stylists, musicians or makeup artists may have to protect their brands through trademark or copyright law. Creative types also have to protect their businesses against rights of publicity or social media defamation claims from persons hired as background vocalists, models or photographers. So, again the close parallel between the two fields is what motivated me to really explore fashion law.

I also noticed that Memphis has an underground fashion community that is becoming more visual, more vocal and more interested in making Memphis a fashion hub. I am excited about that prospect, and I want to be a integral part of this fashion movement. Since I love clothes and the law, I am getting the best of both worlds.

What’s one thing that designers/brands need to know when they’re setting up their business?
It is important to understand the legal requirements of a business and the tax implications for the type of business structure chosen. For example, some people only look at the cost of establishing a business and use online forms to help establish a LLC and avoid attorney fees. But there are registration requirements for the state of Tennessee that may make the low cost of establishing a LLC online more expensive when the business wants recognition in Tennessee.

It is also important for the fashion designer to adopt a competent core team to help manage the business. Even with a dynamic team in place, the fashion designer should remain active in the financial health and growth of the business.

Looking back at 2011, what was the most interesting case involving fashion/trademark law to you? Why?
The most interesting case in 2011 was Christian Louboutin SA v. Yves Saint Laurent America Inc. This case has not been decided yet, but it is being followed closely by fashion and intellectual property attorneys. Louboutin’s red-soled shoe was granted a trademark by the United States Trademark and Patent Office, but Yves Saint Laurent is challenging that trademark since it has its own line of red-soled flats.

The core issue in this case is the protection of a color. If the Louboutin trademark is cancelled, other businesses that have protected a color under trademark law may face a legal challenge from competitors as well. So, other businesses that rely on color to identify their goods such as the infamous Tiffany blue box are filing briefs in support of Louboutin. So, the final decision in the Louboutin case could have wide range implications in the fashion industry.

Legal Disclaimer: The views expressed in this article are not intended to serve as legal or other advice nor does it create an attorney-client relationship.

New York Fashion Week 2012 is only a few days away! While the public waits six months or more to see new designs at fashion week, copies from the runway are usually in retail stores before the fashion designer can take a bow! So, how does this happen?

Usually, original works of authorship would fall under copyright law. Fashion design is not a text, but it is the result of a person’s creativity and ingenuity that has been transformed from an idea to a tangible garment. Yet, the law states that clothes are necessary to ensure human modesty in public. Therefore, clothes are classified as a “useful article” and generally not protected under copyright law.

An exception exists “only if…such design incorporates pictorial, graphic, or sculptural features that can be identified separately from…the utilitarian aspects of the article.” For example, if a belt buckle was shaped like a skeleton key then the buckle must be identifiable as separate from the belt itself. So, consumers are not buying just another belt–but a belt that has a specific and identifiable feature–the belt buckle. Because of that critical distinction, the belt buckle’s design could possibly receive copyright protection.

In my next article, I will begin a 4-part series about the different fashion law issues that lurk beneath the glamour of New York Fashion Week. Welcome to Fashion Law 101!

Legal Disclaimer: Fashion Law 101 is not intended to serve as legal or other advice nor does it create an attorney-client relationship.