Posts by Jeff Trexler

Swatches and swipes

The 9th Circuit’s ruling in Unicolors v. Urban Outfitters is interesting not only for its discussion of the proper standard for summary judgment in a copyright infringement case, but for its glimpse into Urban Outfitters’ design process.

The 9th Circuit concluded that this process was evidence of recklessness — a revealing example of why it’s essential to understand that in this age of ubiquitous tech and far-reaching discovery, the image of corporate enterprise as an impenetrable black box has all but disappeared.


Is Your Dress Code Illegal?

United was for yoga pants before it was against them

United’s defense of refusing to board certain passengers who are not properly clothed is just the latest in a series of dress-code dust-ups. Professor Scafidi’s new Think Tank column for WWD explains the changing legal and social environment for attempts to regulate attire.

Today, law is leading the charge against compulsory conformity in workplace dress, at least in key jurisdictions — but even many fashion companies remain unaware of the new rules. Gender-specific dress codes, for example, are prohibited in New York City. A company could theoretically require dresses and heels for female employees, but it would have to do the same for male employees.

Mandatory uniforms are permissible, but only if there are no restrictions on which items are worn by men and which by women. After a discussion of this policy at the annual Fashion Law Institute symposium last year, over 20 well-known fashion brands reported that they had changed their dress codes, and others continue to follow suit.

United tweets that it has the right to ban certain passengers who don't dress appropriately

Cured? Bangladesh courts shutter tanneries

Dhaka, Bangladesh tannery worker inspecting leather production

Sweatshops and factory fires have not been the only object of criticism in regard to the Bangladesh garment and accessories industry. Water has also been a substantial focal point of concern -- in particular, the water being polluted by upwards of 200 tanneries in Dhaka, which for decades has been a leading hub for regional and international leather production.

Judges in Banglandesh appear have taken the past few years of exposés to heart, as first the High Court and now the Appellate Division have ruled that 154 Dhaka tanneries must close. On the surface it's an obvious call -- after all, how can anyone object to curbing water pollution and workers' exposure to dangerous chemicals?

And yet objections there have been, likewise grounded in an ethical concern: the effect of the closure on tannery workers' livelihoods.

On Mar 6, the High Court ordered immediate closure of tanneries in the city and instructed authorities to snap power, water and gas connections for them.

The court's verdict came following a petition by the Bangladesh Environmental Lawyers' Association (BELA).

Bangladesh Finished Leather Goods and Footwear Exporters' Association (BFLGFA) Chairman Mahiuddin Ahmed Mahin moved the Appellate Division to stay the order.

BFLGFA counsel said during Sunday's hearing: "My clients are yet to receive the compensation to relocate. It's a matter of a lot of people's livelihoods. At least give us time until June."

"We are sorry," is what the court said before rejecting the petition.

The photos in this post, taken by photographer Michael Foley, highlight the conflicting interests at play. In the US we've already seen the spectacularly unpredictable systemic effects that can follow the collapse of manufacturing hubs; what's next for Bangladesh remains to be seen.

Sex Objects and Civil Forfeiture

Saint Laurent Ad with woman sitting on a chair

Neither women nor property should be treated as mere objects -- that's the takeaway from two seemingly unrelated developments in fashion law last week.

Saint Laurent's Ad Adjustment

In the latest of a series of regulatory enforcement efforts directed at fashion brands, French advertising authorities published a ruling against a December ad campaign by Saint Laurent and initiated new action against two more Saint Laurent ads, one of whose images is posted above.

The ruling highlights the legal and ethical concern at the heart of these enforcement efforts: as provided in the French agency's "Image and Respect of the Person" guidelines, "Advertising shall not reduce human persons, and in particular women, to the function of objects." This anti-objectification rule reflects Kant's influential ethical standard known as the categorical imperative, which rests on a fundamental distinction between person (in Latin, persona) and object (res). In brief, a person is to be treated in ways that reflect human dignity and autonomy, not reduced merely to a useful object.

For French regulators, as for many complaining about fashion ads, marketing that depicts women as "hypersexualized" or thin are fundamentally at odds with the ethical distinction between persona and object; sexuality is seen as reducing women to their physical utility, which images of thinness are said to coerce women to feel bad about themselves and to follow an unhealthy lifestyle.

It's worth noting, though, that the regulators' view of sexuality and human proportion are not universally held. For some, expressing agency, freedom, and power through sexual expression is a quintessentially human (not to mention feminist act). Likewise, freedom and agency in regard to one's body takes shape in a wide range of approaches to bodily modification, from ostensibly extreme forms of adornment and plastic surgery to the full spectrum of dietary choices and body types. Does rejecting these perspectives as a matter of law deprive their adherents of their fundamental human dignity and autonomy? I'll leave that for you to decide.

Counterfeits and civil forfeiture

Even as French regulators were delving into the distinction between person and object, Justice Clarence Thomas issued an intriguing concurrence in a denial of certiorari that also explored the relation between persona and res. The case: Leonard v. Texas, in which the appellant questioned the constitutionality of civil forfeiture statutes.

Noting that the Court was declining to hear the case on procedural grounds, Justice Thomas went on to set forth several reasons for concluding that the time had come for civil forfeiture to end. The core problem, Justice Thomas argued, lies in the distinction between in personam and in rem jurisdiction. In this instance, taking property in an in rem action with no regard to the individual's rights in connection with that property shows a nihilistic disregard for due process; by reducing a person's property merely to its alleged utility in committing a crime, we dehumanize the person as well.

The future of civil forfeiture laws is a matter of serious interest for fashion anti-counterfeiting efforts, inasmuch as the seizure of fake goods through proceedings directly against the property has long been a standard means of getting counterfeit merch off the market. This is true at both the state and federal levels, with Texas as a telling case in point: depending on the amount, trademark counterfeiting can qualify as either a first- or second-degree felony, thus making the goods subject to forfeiture under the state's Code of Criminal Procedure.

Justice Thomas's contention that civil forfeiture laws are a historical aberration that do not fit within contemporary constitutional due process standards is a conclusion that in its broadest contours has become rather popular since John Oliver featured the practice on Last Week Tonight. Can - and should - this tactic be saved?

Justice Thomas's examination of the history of civil forfeiture provides grounds for taking a more tailored approach. Two observations are particularly important. First, Justice Thomas observes that centuries ago civil forfeiture was limited mainly to customs and piracy, in which the perpetrators were typically overseas and outside the personal jurisdiction of the court. In addition, he notes that traditional civil forfeiture targeted the means by the crime was accomplished, not the proceeds from committing it.

While intellectual property pirates are in some ways qualitatively different from the oceanic predators of long ago, anti-counterfeiting civil forfeiture addresses similar policy concerns. With foreign-made goods and online sales the perpetrators are often anonymous and well outside the reach of courts, let alone law enforcement. Likewise, the focus of enforcement is not on seizing revenue but getting the goods off the market, typically by destroying them. The sort of abuses highlighted by both Justice Thomas and John Oliver -- e.g., police officers using asset seizure for self-enrichment at the expense of tourists and the poor -- rarely if ever appear.

If the Court does take a civil forfeiture case, the optimal approach could take take civil forfeiture back to its roots with a narrow standard tailored to situations such as fashion piracy. As an added safeguard to discourage abuse by officers on a thinly disguised shopping expedition, the law could require expert assessment as to whether the goods are indeed counterfeit, along with mandatory destruction of all seized fakes.

The greater significance of these controversies, though, lies in what they reveal about a deeper tension with fashion law and ethics: our imperfect and often conflicting attempts to delineate the boundary between person and object.