Professionelle: Tell me a little about your background and what got you interested in the legal issues surrounding the fashion, music and art scenes.
I've been involved with the arts in one capacity or another for as long as I can remember. My main focus, for a very long time, was music: I started taking classical piano lessons at age four, at some point I became more interested in pop and began writing my own songs, and in college I started performing them publicly. I released a singer/songwriter album, "People, Places, and Flings," when I moved to New York after college, and I guess that's when I first became interested in copyright law. After my album was released, a Broadway singer covered one of my songs, which, in retrospect, was my (very crude) introduction to copyright licensing.
As for visual art, it's something I always admired and did for enjoyment alongside music. I almost majored in art history in college, but through a strange (but not especially interesting) turn of events, I ended up studying linguistics instead.
I became interested in fashion much later, after I began law school and discovered that fashion design is very differently situated from most other art forms when it comes to copyright protection. Like many lawyers, I'm fascinated by the margins of the law, and fashion certainly sits on the margin of copyright. My interest in the clothes themselves came even later, which in turn led to a desire to learn how clothing is designed, manufactured, and marketed. I explored this interest by taking some classes at Parsons, including a course on fashion history, which I strongly recommend for attorneys who serve fashion clients.
Professionelle: Although I'm sure it's difficult to pin down, what exactly is "fashion law?"
"Fashion law," like "art law," is an amalgamation of many different areas of the law. But while law schools and firms have been talking about "art law" for decades, no one referred to "fashion law" as a unique discipline until fairly recently. The vast majority of law schools still don't offer a class titled "Fashion Law."
Like me, many attorneys get into fashion law from an intellectual property (and specifically trademark law) background. Trademark law is an essential component of fashion law, to be sure, but any lawyer serving fashion industry clients will need to be well-versed in many other areas of law. At the inaugural meeting of the New York City Bar Association's Fashion Law Committee, for example, topics on the agenda included privacy, security, and other concerns associated with Internet commerce; employment issues of particular concern to the fashion industry; the law governing advertising, marketing, and promotion; intellectual property protection for store interiors; real estate; and developments in anti-counterfeiting. Many of these issues aren't unique to the apparel and beauty industries, but in each instance, there are nuances that only a "fashion lawyer" -- or at least a lawyer who has worked with multiple fashion clients -- will be familiar with.
Professionelle: What has it been like to transition from being an employee to being an entrepreneur? Any advice for others who are thinking about doing the same thing -- both specific to starting your own legal practice and to being an entrepreneur in general?
Just today, MSNBC.com ran an article titled "Law grads going solo and loving it;" The article focuses on those who hang their own shingle right out of law school, which wasn't the case for me -- I practiced at a large law firm first, until I decided my passion lay elsewhere -- but like the attorneys discussed on the article, I'm definitely "loving" the solo experience.
With that said, going solo isn't a panacea for unhappy big-firm lawyers: there's still stress, of course -- just from different sources. Instead of difficult hours and a lack of control over the direction of your career, you have to maintain a constant focus on marketing, cash flow, and the like. Many have noted that a solo practitioner, especially at first, spends more time on "business" than on "law." Some might find this appealing, while others will be frustrated by the smaller percentage of time they get to spend actually "practicing law." Personally, I enjoy the balance. But for me, the biggest perk is being able to chart the course of my own career. I've known since law school that I wanted to practice copyright and trademark law, and now that's how I spend the largest portion of my work day.
While my first-hand experience as an entrepreneur is limited to the legal industry, I represent many small business owners, some of whom left jobs at large corporations to start their own ventures. My interaction with them has led me to believe that the trade-off is similar, regardless of industry: would-be entrepreneurs usually have to choose between a position of security within an established organization, where control over their career and future will always be limited to some degree, and a less secure position of their own design, which has the potential for greater creative, emotional, and even financial rewards, but also imposes administrative, managerial, and business development obligations that some people just don't want.
Professionelle: What are the main issues in fashion law right now and how might those issues impact the consumer?
Counterfeiting has been a major concern for the fashion industry for a very long time, for obvious reasons. Recently, Tory Burch made headlines for a $164 million judgment awarded to the company in a counterfeiting and cybersquatting lawsuit; The company probably won't be able to collect on the judgment, in part because many of the responsible parties are likely located in countries with weak intellectual property enforcement, or unreliable judicial systems, or both. Still, the judgment was a decisive victory for anti-counterfeiting advocates.
As for consumer impact, there are undoubtedly instances where people are deceived into buying counterfeits that they believe are genuine. But as we all know, consumers are often aware that they are buying counterfeits. The fashion industry has tried tackle this issue in a variety of ways; one non-legal strategy has been to raise consumer awareness of the connections between counterfeiting revenue and human rights violations. Since many consumers are interested in the supply chain behind the clothes they buy, they may want to seek out this sort of information. There are many reports readily available on the Internet that address not only human rights issues, but also alleged connections between counterfeiting revenue and terrorism. (As always, the conclusions of such reports are subject to debate; consumers must decide which reports they deem reliable.) Consumers who live or shop in New York City should be aware that Councilwoman Margaret Chin recently proposed to make it a crime to knowingly purchase counterfeit products; if Councilwoman Chin's bill becomes law, counterfeiting would immediately become relevant to a much larger swath of consumers.
A related issue of concern to the fashion industry is knockoffs. (Knockoffs typically differ from counterfeit goods in that the original company's trademark is not used, just its product design.) As I discuss on my blog, copyright is generally unavailing for the knocked-off designer, but the courts have seen a deluge of "trade dress" knockoff cases. In these cases, a plaintiff is essentially claiming that its product is so closely associated with a single source in the public's mind that the design itself functions as a trademark. I'm not aware of any significant recent developments in trade dress law, but the frequent failure of trade dress protection to stop even identical knockoffs might be one reason for the renewed interest in copyright-like protection for certain fashion designs.
Many bills have been introduced in Congress over the years to grant copyright, or copyright-like protection, to fashion, but Senator Schumer's 2010 "Innovative Design Protection and Piracy Prevention Act" had far more momentum than most. For one thing, it actually made it out of the Judiciary Committee (only to have to start all over again when the new Congress took office in January.) Until last week, there had been little activity surrounding the bill this session, but it appears the subject of knockoffs is once against on the Judiciary Committee's radar. In any event, the Subcommittee on Fashion Design Legislation at the American Bar Association, which I co-chair, has continually debated and analyzed the bill; with any luck, our official position will be announced in the near future.
It is difficult to speak to the consumer impact, if any, that the Schumer bill would have if it became law. The legislation would grant three years of copyright-like protection (a far shorter term of protection than that available to other artistic works) to fashion designs that display "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs." It is difficult to know what percentage of designs will satisfy these criteria, especially given the cyclical and increasingly self-referential nature of fashion. If the bill, once passed, does prevent a large number of knockoffs, that will force most consumers to either shell out for the original -- and usually more expensive -- version of a garment, or simply go without it. (Interestingly, the bill does have a "home-sewing" exception, but this probably won't turn out to be very important.) It's possible that the litigation that will inevitably take place under the provisions of the proposed law would increase the operating costs of fashion companies, and in turn increase costs to the consumer. But this increase, if it occurs at all, would likely be minimal. The bottom line is that no one can say for sure how things will play out if the bill passes, which is something I've emphasized on my blog.
The last legislative development I'll mention, which affects not just fashion companies and consumers but other industries and most users of the Internet, is the so-called "PROTECT IP Act." While the bill seems to have noble intentions, it is very controversial because of its potential effect on expression on the Internet. This bill is part of a larger trend in intellectual property law, which is an effort to hold intermediaries or "gatekeepers" like Internet Service Providers (ISPs) responsible for the misconduct of individuals. I won't comment on this particular bill, in part because I am slated to assume the vice chairmanship of the ABA committee responsible for evaluating it in August. But I would encourage consumers to educate themselves about intellectual property legislation, and IP issues more generally, as they have an enormous effect on what people can say and do, especially on the Internet.
Right now, for example, I am representing Rachel Kane of WTForever21.com, a site that comments on and criticizes the retailer Forever 21; Forever 21 has threatened Rachel with legal action for supposed intellectual property infringement, when it is clear under the law that she has engaged in protected speech. Fortunately, the media has taken an interest in this case and almost unanimously sided with Rachel and her right to freedom of expression, but there are many instances where mere threats about intellectual property infringement -- often baseless -- succeed in shutting down protected speech and artistic expression. For this reason, everyone should be interested in intellectual property issues; IP is most definitely not just for lawyers anymore.
