Fashion Law Becomes Regular Feature on KP Fusion Blog!

To read the entire interview, please visit:
KP Fusion Blog: Fashion Law Interview with Attorney Kelly

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.

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Fashion Design vs. Copyright Law

To see the original article, please visit: Fashion Law 101 on KP Fusion Blog

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.

Protecting Your Jewelry Design

Fashion Law Matters was originally published on the Beale Street Chic blog on January 10, 2012.

Donna Karan Spring 2012 | Photo credit: www.fashionista.com

New York Fashion Week Fall 2012 is only a few weeks away. Fashion lovers and fashion critics are waiting to see the latest looks from emerging designers and well-known labels like L.A.M.B., Tracy Reese, Michael Kors, Vera Wang, J. Mendel and Donna Karan. But the audience will also pay close attention to those little “extras” that make clothes come to life. Those little “extras”– purses, shoes, shades, tights, gloves, hats and jewelry — are better known as the “perfect accessory.”

Accessory designers specialize in creating that extra bit of glam for that little black dress. And just like a fashion designer, an accessory designer has a brand to protect. In an earlier post of Fashion Law Matters, we discussed that traditional legal disciplines such as copyright are not a friend of fashion. But the accessory designer that makes jewelry has some protection under copyright law. Remember, copyright is a form of protection provided by federal law to authors of “original works of authorship,” including “pictorial, graphic, and sculptural works.”

While the word “author” may conjure up thoughts of Eric Jerome Dickey or Zane, copyright law extends that definition beyond the spines of a book. Anything that a person creates in a tangible form gives right to the claim of authorship. So, a jewelry designer is an “author” under this definition. The U.S. Copyright Office allows jewelry designs to be protected as a “Work of the Visual Art.” A deposit of the published jewelry design must be sent to the U.S. Copyright Office in the form of a picture or the actual piece of jewelry, whichever is the “best edition” of the published work.

If you attend fashion week in February, make sure to pay attention to the accessories on the runway. Those small items may be the start of something big.

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

Rihanna and Copyright Infringement

This Fashion Law Matters article originally appeared on the Beale Street Chic blog on December 2, 2011.

Fashion designers and stylists often use props as a critical element in showcasing fashion. It is not surprising to see food, animals, furniture or industrial pieces in a fashion layout. But there are legalities to consider when selecting props as recording artist, Rihanna, recently discovered.

David LaChapelle is a photographer known for his surreal pictures of celebrities and distinct photographic style. One of LaChapelle’s photographs—a striped room with a red afro wig—is shown above on the right. The photograph on the left shows a similar scene from Rihanna’s “S&M” video. (Also note the copyright notices in the left hand corner of both photographs)!

Pictorial or visual works that are registered with the U.S. Copyright Office give the copyright owner important rights. Among these is the copyright owner’s exclusive right to reproduce the work or prepare derivative works. LaChapelle sued Rihanna and Def Jam Records for copyright infringement for the unauthorized use of several poses, lighting, wardrobe and props in the “S&M” video. LaChapelle argued that the video was “directly derived from and substantially similar” to 8 photographs that he created.

As shown above, the “S&M” video director did not copy every color, pose or detail from LaChapelle’s photograph. Nonetheless, the court ruled that the copyright infringement claim was “successfully alleged.” Based on the court’s ruling in favor of LaChapelle, Rihanna and Def Jam quickly settled.

To use a copyrighted work, permission must be granted from the copyright owner. Without permission, the infringing party (Rihanna) may have to defend a copyright infringement lawsuit. In this case, LaChapelle asked for $1 million in damages. While the exact amount of his settlement was not revealed, LaChapelle was quoted as being “very happy” with the settlement. There are many lessons learned from this lawsuit, but the overriding lesson is quite simple: “It is better to ask permission rather than forgiveness.” If not, forgiveness may cost you a bundle!

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

PWK Law 

 

The KarDASHian’s, Trademark Law and Fashion

This article was originally published in “What’s Happening, Myron! online magazine.

Fashion Law Trends by Pamela Williams Kelly, Esq.

Fashion and Entertainment Attorney

What’s in a name? In the world of fashion, a name is everything to discerning buyers. Designer labels are associated with quality and are considered representative of the buyer’s taste and status as well. One of the newest names to join the fashion world is “Dash,” which is named after its infamous owners, the Kardashian’s.

Dash is a creative play on the name “KarDASHian,” but the word “dash” is not unique. For example, “Mrs. Dash” is a national brand of seasoning that has been around since the 1980’s. Yet, Dash still filed for federal trademark protection for its brand. A trademark protects a name or mark used to distinguish a good or service in commerce and gives the owner of the trademark the exclusive right to use the mark in commerce. The purpose of the trademark law is to protect the consumer by clearly identifying and distinguishing the goods and services of one seller from another.

However, there is a caveat to this rule. The trademark registration only protects the owner from others using his or her mark in the same class of goods or services. So, while Dash and Mrs. Dash are definitely sharing a mutual name, the difference in the goods and services offered were the key to Dash’s successful trademark registration. Simply stated, Mrs. Dash is a good, specifically a spice. Dash is a trademark for goods, i.e., clothing and a service mark for a service, i.e., the retail store. Thus, the public will not likely be “confused, mistaken or deceived” as to the source of goods of either trademark owner.

Interestingly, Dash is a popular name in commerce with over 800 “dash” trademark registrations. So, there is plenty of money in a name if you protect it correctly before the money starts rolling in!

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

PWK

Nicki Manaj and the Puff Ball Dress

This “Fashion Law Matters” article was originally posted on the Beale Street Chic blog on November 1, 2011.

A few months ago, Nicki Manaj attended New York Fashion Week in a colorful pom-pom covered dress. Usually, this would not be newsworthy considering Minaj’s interesting style of dress except a designer named Jessica Rodgers claimed that the “puff ball” design was hers. Rodgers explained that Minaj’s stylist requested copies of her designs, but she never heard from Minaj’s stylist again after she delivered the designs. The next thing Rodgers saw was Minaj posing for the camera in a near replica of Rodgers puff ball design.

Under intellectual property law, the creations of the mind such as inventions, literary works, symbols, images and designs are protected from nonpermissive use in commerce. Although the garments do bear strong similarities, Rodgers has little legal recourse under intellectual property law. In the United States, it is usually not illegal to copy a fashion design even in terms of how the final garment is cut and assembled. Therefore, two garments could be almost identical in appearance and leave a designer, such as Rodgers, without a remedy in a court of law.

Yet, intellectual property law does offer copyright protection for a tangible design rather than a mere “concept.” Thus, the “concept” to adhere pom-poms to a piece of clothing as a source of inspiration and design is not copyrightable. Instead, Rodgers may have secured copyright protection for a puff ball design that was actually printed on the fabric.

Without sufficient grounds for a copyright infringement lawsuit, Rodgers took her case to the court of public opinion. In that arena, Rodgers “proved” that the puff ball design was her creation not Minaj’s.  While Minaj has remained silent about the controversy, the stylist who requested Rodgers’ designs no longer works for Minaj. Maybe she is the real puff ball in this story.

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

PWK