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April 26, 2009

Uniformly Detested, But Legal

In today's New York Times, the Ethicist takes on the question of whether it is OK to charge employees for their "invariably ugly" uniforms.  Unfortunately, his analysis goes a bit too far and gets the law wrong. 

Actually, brown doesn't do much for me.While Counterfeit Chic won't quibble with the conclusion that requiring workers to pay for hideous hats and horrible polyester shorts adds insult to injury, it is nevertheless usually legal.  Under the federal regulations implementing the Fair Labor Standards Act, employers may require employees to bear the cost of mandatory uniforms.  The only legal limit on this policy is the requirement that paying for the uniform cannot effectively drive the employee's pay below the minimum wage. 

In practice, this means that minimum wage employees cannot be forced to pay for items of clothing that they can't wear elsewhere, but other workers can be.  And all employees -- minimum wage or not -- can be required to provide their own clothing if the required items of apparel can be worn outside of work, as in the case of a restaurant server told to wear a white shirt and black trousers. 

Income tax law is consistent with employment law in this regard.  While an employee who pays for his or her own clothing may not deduct the cost of work clothes that (s)he could theoretically wear elsewhere, like a business suit, (s)he may deduct the amount paid for an article of clothing that is required or essential for work, is not suitable for personal wear, and is not in fact worn apart from work.  So go ahead and deduct the cost of that lab coat or giant team mascot head, but not your rain boots or long underwear -- as one taxpayer learned to his dismay. 

Having established that the Ethicist is mistaken with regard to law (despite quoting a lawyer), I should probably stop now and refrain from commenting on the ethics of the issue.  But who can resist a debate about fairness?

Is it really so awful to for a company to insist that employees pay for their own apparel just because they can only wear those particular items to work?  Admittedly, buying corporate logo gear may not be high on the list for that first paycheck, but many of us have clothes in our closets that are in practice for work only.  How many ties would the average man own if he didn't have to wear them to the office?  And yet he had to pay for all of them himself -- and can't even deduct the cost of these symbolic nooses. 

So while my sartorial sympathy goes out to J.M. in Arizona and anyone else whose employer requires a uniform that the employees don't want to wear, much less buy, the practice is ultimately neither illegal nor unethical.  

April 24, 2009

DVF Does the Right Thing

For hardcore fashion pirates, copying is just a business method -- where the law lets them get away with it.  But what happens when an otherwise creative designer finds that she's inadvertently plagiarized a little-known label?

CFDA President and designer extraordinaire Diane von Furstenberg was "horrified" to learn this morning that her "Zaria" jacket for spring 2009 (right) bears a strong resemblance to a spring 2008 look from the indie Canadian label Mercy (left) -- and she lost no time in taking action.

 Mercy jacket (left) and DVF Zaria jacket (right)

Diane, who has suffered at the hands of career copyists herself and has been a determined proponent of U.S. legislation to extend intellectual property protection to fashion designs, immediately sought to get all of the facts and to reach out to the Mercy duo of Jennifer Halchuk and Richard Lyle.  Although there is no copyright violation in this case -- the DVF fabric pattern and the Mercy floral, both of which are subject to protection, are quite different -- Diane nevertheless intends to voluntarily compensate the Canadian designers for the unauthorized use of their work.  No doubt she'll also be having a conversation with the 15+ members of her design team about the difference between inspiration and imitation.

"I am devastated," Diane told Counterfeit Chic, "but this can be a lesson for everyone." 

Score one for corporate ethics -- not an oxymoron after all.


Many thanks to fabulous fashion illustrator Danielle Meder, who was the first to send a tip!

April 23, 2009

Battle of the Baggy Pants, Part 2

After a judge found a Florida town's ban on underwear-revealing saggy pants unconstitutional as applied, opponents of the law vowed to overturn the ordinance entirely on 14th Amendment grounds.  Yesterday, a judge agreed -- and Riviera Beach's residents are now free to droop trou.  (OK, go ahead and groan.)

For a discussion of the earlier case -- and its cultural subtext -- click here.  


April 22, 2009

March on Washington

Their dresses preceded them to Washington, as part of Michelle Obama's inaugural wardrobe.  Now some of the First Lady's favorite designers have taken the trip themselves in order to ask Congress for intellectual property protection for their designs.

Today Narciso Rodriguez, Jason Wu, Maria Cornejo, and Thakoon Panichgul spent the day on Capitol Hill with CFDA executive director Steven Kolb, promoting the new and improved Design Piracy Prohibition Act.  As in earlier incarnations, the legislation calls for amending the Copyright Act to provide 3 years of protection for registered fashion designs -- a modest request compared to the 25 years of design protection available throughout Europe or the 10 years available in countries including Japan and India.  Or the life plus 70 years granted to creators working in copyrightable media.

For Michelle's designers, the recognition associated with dressing such a fashion-forward First Lady is a tremendous honor -- but publicity alone doesn't pay the bills, especially in the current economic climate.  Jason Wu, for example, doesn't get a penny from the sale of still-legal knockoffs of the gown seen 'round the world (below).  And while the automobile industry and the banking industry can go hat in hand to Washington, the likelihood of a bailout for the fashion industry is smaller than a size zero. 

So here's wishing Seventh Avenue's ambassadors good luck in the land of navy blue blazers and khakis!  Hopefully President Obama, whose own all-American suitmaker was recently forced to declare bankruptcy, will have the opportunity to add his own stylish signature to the bill soon.

 Mrs. O in Jason Wu (left) and ABS knockoff

Photos: Darrell G. Mottley, Esq. and USA Today


UPDATE:  Many of you have asked for the updated text of the Design Piracy Prohibition Act.  Unfortunately, I cannot distribute the draft, but I will provide a link as soon as its introduction becomes official. 

April 20, 2009

Ruffled Feathers

According to the New York Post, Real Housewife Kelly Bensimon and a former colleague at Elle Accessories are howling over an owl -- or an owl pendant design, to be exact. 

Celeste Greenberg, who now designs the jewelry line Tuleste Market, claims that the design came from a vintage pendant that she sourced for Bensimon.  The two allegedly made a verbal agreement to manufacture replicas of the owl and split the profits.  Bensimon, who has produced and sold both pendants (below) and clothing (left) bearing an owl design, denies that that there was any such deal. 

The real legal issue, however, may be the provenance of the original pendant.  Since jewelry is subject to copyright protection under U.S. law, the initial owl design could belong to someone else entirely, depending on its age and whether it was registered.  And, given the potential for publicity-generated profits, the original designer may very well give a hoot.


Under London's Bridges

While in London recently, Counterfeit Chic noticed a fair number of people carrying counterfeit handbags -- but none for sale on the streets, apart from a few suspicious items in shop stalls. Why this marked difference in marketing by comparison with other world capitals?  After all, in some cities the fakes are neatly laid out on white sheets on the sidewalk just opposite boutiques selling the real thing. 

The "aha!"  moment, or at least an educated guess, came when I saw this sign set up near St. Paul's Cathedral.  Apparently it's not that the U.K. has managed to end all sales of fake DVDs and watches, but has more or less stopped overt street trading altogether. 


Now I wish I'd taken a closer look at the ice cream truck (decorated with presumably unauthorized Disney characters) doing a brisk business not too far away.  Who knew that there was an illicit trade in vanilla soft serve? 

April 13, 2009

Who Can Spot a Fake Watch

Need a reason to forego buying a fake watch?  How about this:  If the Doctor needs something gold to help him save the world, your faux fashion statement won't do it. 

Confused?  Check out this scene from the Doctor Who Easter special, "Planet of the Dead."  


Still confused?  Then you're clearly not a fan of the hugely popular and long-running British sci-fi series Doctor Who, which involves an attractive and altruistic but ultimately lonely alien (currently David Tennant) who saves the human race.  Often.  With a sonic screwdriver.  

Um...maybe you need to see it for yourself. But trust me, it's worth it -- and I'm only an honorary geek.

Many thanks to extremely warm and friendly members of LOTNA, who kindly allowed a couple of visiting Yanks to join them at a London pub to watch the show.  One day, I shall come back. Yes, I shall come back. 

April 08, 2009

Still Pending: L'Oreal v. eBay.fr

Maybe French judges like to tease the parties before the court, or maybe they just take really long lunches.  Whatever the reason, the decision expected today in L'Oreal v. eBay has been postponed -- again.  This time 'til the end of April.  Stay tuned.

Related post:  European Theatre of Operations:  Everyone v. eBay.

April 06, 2009

Law and the Little Black Dress

Coco ChanelWhat do judges and nuns, mourners and style icons, Betty Boop and Coco Chanel have in common?  Their "little black dresses" -- generously interpreted -- all have some connection to caselaw or custom. 

Betty BoopIntrigued?  Drop by Fordham Law School's main lobby to check out the coolest law library showcase ever, courtesy of Professor and Law Library Director Bob Nissenbaum and Reference Librarian Janice Greer.  (And OK, an idea or two from your favorite law prof.) 

But hurry -- this window into Law and the LBD will only be on display until April 15. 

Hair Raising

It's been half a century since Clairol introduced its now-iconic hair color campaign with the coy question, "Does she...or doesn't she?  Only her hairdresser knows for sure."  Today for many women and an increasing number of men, the use of hair color is as unremarkable a grooming practice as the application of lip balm.  Of course she does if she wants to.  Who cares?

Abercrombie & Fitch, it turns out -- at least if an employee's hair color of choice does not comport with the retail chain's "look policy."  And, alleges a lawsuit pending in the Southern District of New York, the only acceptable hair colors of choice for African Americans at A&F are dark brown or black. 

Former sales associate Dulazia Burchette claims that she was twice sent home to re-dye blonde highlights to a color she was "born with" before finally leaving A&F.  According to the complaint, at least one other African American employee with nonconforming hair color was fired, another was allowed to work only in the stockroom until such time as she could dye her hair, and a third chose to wear a black wig.  Caucasian employees' hair color and highlights were allegedly not subject to similar scrutiny. 

While Judge Richard Berman last week dismissed several of Burchette's arguments, she was allowed to proceed with the primary claims regarding racial discrimination, hostile work environment, and retaliation. 

And so the battle over African American women's hair -- from Renee Rogers' 1981 action demanding that American Airlines allow her to wear braids to the Cleary Gottlieb law firm's bad hair day a couple of summers ago, courtesy of Glamour magazine -- continues.  And it's a good bet that neither Tina Turner nor Tyra will be doing a line for A&F any time soon.

Via WWD.  

April 02, 2009

Runway Ready

While reading yesterday's New York Times update on the fight over which network would have the right to air the next season of Project Runway, Counterfeit Chic wondered whether it was an April Fool's joke.  Not because the lawsuit had settled, with the Weinstein Company agreeing to pay a fee to move the show from NBC's Bravo to Lifetime, but because the official statement apparently included a message from Harvey Weinstein personally congratulating NBC Universal CEO Jeff Zucker and thanking him for resolving the issue in a professional manner. 

Really?  Harvey Weinstein?

But improbably polite press releases aside, it's nice to know that the competitors who braved sleepless nights of constructing couture garments from industrial waste and dryer lint -- while inspiring record numbers of starry-eyed students to apply to design school -- will have their season in the sun.

April 01, 2009

Way to Go, Mrs. O!

Move over, Mr. President.  The First Lady has a new marketing plan that may eliminate the need for additional taxpayer-funded bailouts and pull America out of the recession:  First Family branding.

While Michelle Obama initially objected to use of her daughters' names by Beanie Babies maker Ty, Inc., and White House lawyers have been exploring ways of quietly calling a halt to appropriation of the President's campaign slogans to sell everything from ice cream to furniture, Mrs. O has now decided to stop fighting the public fascination with the First Family and instead channel that consumer behavior for the public good.  The result will be hundreds of official Obama products, including many that take advantage of Michelle's status as a global fashion icon.  Fans of her style will be able to buy everything from a book of paper dolls tentatively entitled, Michelle Obama: The First Hundred Outfits, to reproductions of her most popular ensembles under her own "Right to Bare Arms" label, manufactured in cooperation with J.Crew.  (No unauthorized knockoffs, though -- Counterfeit Chic is pleased to learn that the First Lady is currently negotiating with Narciso Rodriguez, Maria Cornejo, Isabel Toledo, and Jason Wu, among others, to pay licensing fees for their original designs.)

Of course, the President's own endorsement is also a huge selling point for branded merchandise, including clothing.  He's said to be particularly excited about collaborating with Nike on a basketball shoe, and will personally oversee the design of a line of ties to be sold exclusively in the White House gift shop. 

Even the images of the First Daughters will become part of the effort, as their likenesses have been licensed to MGA Entertainment Inc. to create Sasha and Malia Bratz dolls.  The move is expected to save MGA from potentially having to declare bankruptcy after losing a court battle to Mattel, maker of Barbie, late last year.  When asked about the deal, Michelle noted that "Sasha and Malia made the final decision, and they are thrilled with the prototypes."  And their mom-in-chief?  "Well, they certainly are brats sometimes," she admitted with a big smile. 

The best part of Michelle's plan is that as long as Barak remains in office, all proceeds from the sale of these official First Family products will be donated directly to the federal government.  So not only will the made-in-USA merchandise stimulate shopping among otherwise wary consumers here and abroad, but the proceeds will directly alleviate the rapidly mounting national debt.

Reaction to Michelle's idea from previous American first ladies and from her foreign counterparts has ranged from enthusiastic to envious.  Nancy Reagan has already offered to help Michelle design a set of tarot cards, and Barbara Bush has offered to introduce Michelle to costume jeweler extraordinaire Kenneth Jay Lane.  French President Nicolas Sarkozy is reportedly furious that his wife, former model Carla Bruni, didn't come up with the idea first.  Sarko told reporters, "My wife is smart and tall, too!  And many men would buy shoes with heels like mine." 

Although only sales of official First Family merchandise with hologram hangtags and watermarks incorporating the Presidential seal will result in funds channeled directly to the U.S. Treasury, the Obamas have no plans to challenge ongoing private sales of T-shirts and other memorabilia bearing the President's image.  "We're glad that many Americans are proud of their country for the first time and are wearing that sentiment on their T-shirts," said Michelle.  "And Shep Fairey isn't going to pay up anyway."  A senior official added that White House lawyers are having some difficulty reconciling the First Amendment right to free speech with the Obamas' rights of publicity as private citizens.  In addition, suing small, independent vendors would be a politically unpopular move. 

First-year projected revenues are approximately $700 billion.

To pre-order First Family merchandise and make suggestions for additional products you'd like to see developed, text Michelle or visit her website below. 

Happy April Fool's Day!
(But a great idea, right?)