On the Cutting Edge

Ivanka Trump logo and Adrienne Vittadini label

Name game: G-III swaps out Ivanka labels

Was it illegal for G-III to replace Ivanka Trump labels with those of another brand? Lauren Sherman asks Professor Scafidi for The Business of Fashion:

“US textile product labelling laws allow substitution of labels, so long as the entity making the substitution is identified on the new label and keeps records for three years,” explained Susan Scafidi, professor of fashion law at Fordham Law School and founder of the Fashion Law Institute. “This is mostly for supply chain tracking reasons. All of the other required information on the label — fibre content, country of origin, etcetera — must be maintained.”

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“If the original label [is replaced] with that of a third party unaware of the substitution, the [responsible party] would be liable to the third party,” Scafidi says. “All of this derives historically from the law of fraud.”

More details and commentary here!

Name game: G-III swaps out Ivanka labels

Was it illegal for G-III to replace Ivanka Trump labels with those of another brand? Lauren Sherman asks Professor Scafidi for The Business of Fashion:

“US textile product labelling laws allow substitution of labels, so long as the entity making the substitution is identified on the new label and keeps records for three years,” explained Susan Scafidi, professor of fashion law at Fordham Law School and founder of the Fashion Law Institute. “This is mostly for supply chain tracking reasons. All of the other required information on the label — fibre content, country of origin, etcetera — must be maintained.”

...

“If the original label [is replaced] with that of a third party unaware of the substitution, the [responsible party] would be liable to the third party,” Scafidi says. “All of this derives historically from the law of fraud.”

More details and commentary here!

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. unicolors-urban-outfitters-9th-circuit

Supreme Court: Varsity Wins!

It's a big win for the fashion industry!

The Supreme Court’s opinion in Star Athletica v. Varsity is truly historic, slashing through the thicket of tests that had grown up around design copyright. Echoing the Fashion Law Institute’s amicus brief, the Court found that the language of the statute already set the parameters for a standard:

Supreme Court's standard for copyrightability in Star Athletica opinion

The Court’s approach is consistent with its recent copyright jurisprudence, particularly in the years since the late Justice Scalia was appointed. This is why our amicus took a different path from devising a novel ad hoc test; the Court has for decades demurred from adding judicially-created rules when the statute established an identifiable standard. When in doubt, just read the statute!

In this instance, the policy embodied in previous Court precedent and the statute itself was clear: copyright is an adaptive, medium-agnostic legal category, extending to creative work susceptible to cross-platform replication. As applied, this standard is at once expansive and bounded: per the opinion, even as the statute gives copyright protection to a broad spectrum of creative works, it also excludes elements that can be reduced to utilitarian function outside of conveying information or portraying appearance.

As a result, the status quo is preserved without sacrificing the standard’s fundamental elasticity; what courts define as utilitarian and limited to specific media now could grow in interesting ways in years to come.

For now, fashion designers can continue to rely on copyright protection for their original fabric prints and jewelry. Let’s hear it for SCOTUS!

Congratulations to everyone on team copyright, and thanks to everyone who was part of the Fashion Law Institute's amicus brief: industry signatories Jeffrey Banks, Maria Cornejo and Marysia Woroniecka of Zero + Maria Cornejo, Nathalie Doucet of Arts of Fashion Foundation, Keanan Duffty, Barry Kieselstein-Kord, Melissa Joy Manning, Jack McCollough and Lazaro Hernandez of Proenza Schouler, Narciso Rodriguez, and Professor Susan Scafidi; our counsel of record, Michelle Marsh of Arent Fox; and our co-authors, Susan Scafidi, Jeff Trexler, Mary Kate Brennan (Fashion Law LL.M. expected '17), and Jackie Lefebvre (J.D. expected '17)!

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