Interview for Washington Square News (NYU student newspaper) article, "Fashion, lawsuits an unexpected pair"
Washington Square News, NYU's Independent Student Newspaper, has published an article, "Fashion, lawsuits unexpected pair," in its November 5, 2014, issue. In the piece, staff reporter Sam Del Rowe interviews Barbara Kolsun (Stuart Weitzman GC, NYU adjunct prof, and co-editor (with FIT professor Guillermo Jimenez) of Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys -- to which I contributed a chapter on copyright law) about the current lay of the land.
Del Rowe goes on to ask this writer, one Charles Colman, about his views on life, law, and the pursuit of unlawful monopolies. He selects a portion of my answers to his questions, but -- for anyone who is interested -- I've copied my unedited responses to Del Rowe below (hyperlinks added):
Could you briefly describe the courses you teach at NYU, and the issues they deal with?
My primary position at NYU is in the Law School’s first-year Lawyering Program. In the classroom, I teach the fundamentals of legal analysis, practice, and ethics in a two-semester course that all 1Ls are required to take. Outside of the classroom, I often write on topics at the nexus of law and dress, with a specific focus on issues arising in trademark and copyright law.
I also serve as an Adjunct Professor in Steinhardt’s MA Program in “Visual Culture: Costume Studies,” where I teach a spring seminar on fashion theory. The course is essentially a survey of the ways in which anthropologists, psychologists, legal scholars, and others have analyzed fashion over the past two hundred years.
In your opinion, what are some of the main legal issues in the fashion industry today?
The fashion industry—in the sense of large corporations specializing in apparel—is facing many of the same legal issues as other industries: data privacy, compliance with the laws of many different jurisdictions, etc. But when it comes to fashion-specific issues, we see a lot of uncertainty in the area of intellectual property law—specifically, in the areas of design-patent law (which was not heavily used for many years, but has experienced a resurgence in recent years), trademark law’s treatment of “gray goods” (goods that were authorized for sale in one jurisdiction, then imported into another and sold there), and of course perennial difficulties in applying copyright protection to works of fashion design (a subject so deceptively complex that I have just finished writing 150,000 words on it. At present, it looks like that manuscript will be published as a series of five law-review articles in the Harvard Journal of Sports and Entertainment Law, starting in Spring 2015.) For about a century now, many fashion-industry participants have sought more robust copyright, or copyright-like, protection for their creations, but those efforts—including the most recent round of lobbying, which took place between 2005 and 2012—have been unsuccessful. Meanwhile, developments in the courts over the past century have left us with a very idiosyncratic legal landscape, in which certain elements of fashion design are arguably eligible for too much copyright protection, while others aren’t eligible at all.
Could give some background on your current case and talk about the issues involved?
In late August 2014, the University of Pennsylvania Law Review Online published an essay of mine, "Trademark Law and the Prickly Ambivalence of Post-Parodies," in which I surveyed the recent proliferation of t-shirts that make creative uses of high-end fashion trademarks (one prominent example is the "Homiés – South Central" shirt, which incorporates—but modifies—the "Hermès – Paris" logo.) In the essay, I termed these designs “post-parodies,” and explained why they warranted different treatment under trademark law than traditional parodies, whose expression tends to be less complex.
In early October, Chanel filed suit over a post-parodic shirt. (A picture of the shirt and a link to Chanel’s Complaint can be accessed in the previous LAW OF FASHION post.) My firm, Charles Colman Law, PLLC, is representing the defendant, Jeanine Heller. I can’t say too much about the case, so I’ll direct you to a public filing in the litigation [embedded below], where I explain to the Court that my firm plans to file a motion to dismiss implicating "(1) arguments that Plaintiff has not properly invoked—and cannot properly invoke—the Lanham Act, as a threshold matter, in this dispute; (2) a demonstration of the implausibility/non-cognizable nature of Plaintiff’s claims, as well as the dispositive applicability, as a matter of law, of both statutory and judge-made defenses to Plaintiff’s claims for federal and state trademark infringement and dilution; (3) an analysis showing why all of Plaintiff’s claims are foreclosed, as a matter of law, by Defendant’s First Amendment rights; and (4) arguments concerning the preclusion of liability in this case under both constitutional and statutory-interpretation principles that govern the trademark-copyright interface."
Are there any specific legal regulations in the industry that you think could be expanded upon or improved?
In general, I’m very concerned about what I consider the abuse of trademark law to get around well-established limitations of copyright and design-patent protection for fashion design. I think Congress, the U.S. Patent and Trademark Office, and the courts should crack down on this abuse by refusing to let fashion companies monopolize basic design elements through the Lanham Act (governing federal trademark law.) Those who are interested might want to check out a shorter piece I wrote on this subject, for the Harvard Journal of Law & Technology Digest, entitled "The TTAB's Dangerous Dismissal of 'Doubt.'"
Are there any other projects you are currently working on, either academically or professionally?
[Yes -- I'll highlight one, in particular.] In mid-November I will be presenting my latest project, “Patents and Perverts,” at a conference on "progressive IP scholarship" at Marquette Law, in Milwaukee. "Patents and Perverts" is a sort of IP-law-meets-social-history-