Protecting The Brand: Katherine Heigl Sues Duane Reade To Protect Her Publicity Rights

Katherine Heigl has never been a lovable celebrity. Throughout her career, she's bad-mouthed her projects and coworkers to such a degree that Hollywood and the public have largely turned on her. Some have even dubbed her "Hollywood's Most Hated Actress." Lately, it appears she's taken a page out of Sheryl Sandberg's playbook and is leaning in to that title; last week she sued NY-based drugstore chain Duane Reade for $6 million after they tweeted a picture of her leaving one of their stores after shopping there. If she wins, she plans to donate that money to charity... her own charity.

To be sure, this lawsuit isn't going to win her any fans. But then it's not really designed to; it's designed to protect her publicity rights. And using that as a guidepost, Ms. Heigl may actually have a point. Here's the tweet in question:

Heigl's complaint alleges violations of the Lanham Act (the law governing trademarks) as well as New York Civil Rights Laws Sections 50 and 51 (which govern privacy). I'm not going to address the trademark issue here because she would have to prove that Duane Reade's use of her picture would likely confuse the public into assuming she was affiliated with Duane Reade. I just don't think the facts are compelling enough to make that claim (the average person will not conflate shopping at a store with endorsement of it). As I see it, this case is more likely to turn on the privacy issue anyhow.

Section 50 of the NY Civil Statutes says that:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

That kind of says it all, doesn't it? The image of a person (famous or not) cannot be used in advertising without their consent - which Ms. Heigl obviously did not give. In common law, this would be referred to as "appropriation of likeness" which is considered one of four privacy rights. So does the tweet count as advertising? Based on the nature of the tweet and the wording, I think a convincing argument can be made. After all, why would Duane Reade tweet that picture if there wasn't a business motive behind it? It's not like the picture was taken by an awe-struck fan... the picture was taken by a paparazzo which was then used by a corporation whose message on Twitter and Facebook was clearly that "Ms. Heigl is a patron of our stores."

Even still, this infraction seems relatively harmless... certainly not worthy of $6 million of Heigl's wrath. And it does raise some questions about the nature of publicity rights as used by celebrities. On the one hand, social media has made it difficult for people to know where the line is between advertising and simply pointing out "here's a celebrity!" While I think the tweet counts as advertising, I could be convinced otherwise with some clever lawyering. There are also First Amendment questions at stake - can a corporation never tweet a picture of a famous patron? Is such a tweet automatically advertising by its nature? And would banning those types of tweets violate the right to free speech? On the other hand, celebrities rely on their images to get work, and having that image appropriated for a use they never approved could result in a loss of work or even ruin business relationships (e.g. what if Ms. Heigl just worked out a deal to be a spokesperson for CVS? The tweet of her shopping at a competing drugstore could destroy that deal).

I know, I know. It's hard to care about how Duane Reade's tweet may negatively impact Ms. Heigl. That's the level of damage she's done to her personal brand. And this lawsuit, however justified, doesn't do anything to help her image. For her sake, I hope she realizes that legal protection of a brand is not the same thing as public protection. The former is fine, but if she wants to continue acting, it will be crucial for her to work on the latter.

Protecting The Brand: Why Letting You Hate King Joffrey Is A Baller Move By HBO

I don't watch Game of Thrones and I never read the books, but even I know King Joffrey is a nasty little shit. That's because everyone, up to and including HBO, keeps telling me. A few weeks ago, HBO did something quite interesting; in anticipation of the upcoming fourth season of the show, the network sponsored a twitter “roast” of Joffrey Baratheon, King of Westeros. The premise is this: fans of the show would tweet horrible things about the horrible king using the hashtag #RoastJoffrey.  The best tweets would be compiled by HBO at www.RoastJoffrey.com. Here are some I picked out at random:

 If you’re a fan of brand protection (and who isn’t these days?) then you should reserve a space of honor for HBO. See, people hate Joffrey... and hating Joffrey has become something of a national pastime  (here’s a Facebook page with the elegant and appropriate title Fuck You, Joffrey Baratheon). The hatred has become so intense that you have to feel bad for actor Jack Gleeson. By all accounts, he’s a nice kid, but the character he plays is such a schmuck that Gleeson can't even watch his own performance. He's even vowed to quit acting when his tenure at GoT ends in order to devote himself to charity work.

Anyway, the Twitter roast proves that HBO knows how to have fun. Furthermore, it shows that HBO understands the fans are going to build a community around the show anyway, so it might as well be a part of that. By joining in the fun of hating Joffrey, HBO is aligning itself with the fans ("we're fans of these characters, just like you!") and in the process, it is building brand loyalty among the audience. Why is that so important? Because if you like HBO you're less likely to steal from them. It's a simple, but effective, truth. If you think HBO cares about your fandom (and word is that they really do care, this isn't just a hollow put on), you're less likely to illegally download the show and more willing to buy the DVDs and all that delicious GoT merchandise.

In reality, there’s no evidence that illegal downloading actually harms large corporate copyright holders (and at least one study shows that illegal downloads actually increase legal sales by 2%), but why take the risk, especially when positioning yourself with the fans is so easy? To me this is a no-brainer. When the fans like you, they’re less likely to steal from you. HBO gets that, and as a result they’re going to let you hate on King Joffrey with the fury of 1,000 suns. I think it’s a good trade-off.

Protecting The Brand: Beyonce Knowles vs. The First Amendment

Remember when Beyoncé performed during the Super Bowl halftime show and this hilarious meme-birthing picture was taken?

And then she flipped out and tried to have it scrubbed from the entire internet?  Well, three months later and Queen Bey is back at it.  She's currently on her Mrs. Carter Show World Tour and she completely banned outside photographers, while releasing only pre-approved flattering pics to various news outlets.  Beyoncé's goal  is to have total control over her image, so instead of newspapers and websites running photos of her looking like She Hulk, she'll instead look like this:

Reasonable minds can argue whether the kind of control she's attempting is even possible in the internet age (hint: it isn't).  But I'm more curious about the effect that this kind of totalitarianism will have on her brand.  The conventional wisdom is that Beyoncé isn't doing herself any favors by limiting press access to her and having relentless control over the pressers that do get access.  On the face of it, it makes her seem out of touch with reality.  But is that harmful to her brand?  I'm not so sure. The people who love Beyoncé are already convinced of her beauty, talent, and semi-royal status and are willing to write off the unflattering pics as aberrations.  And the people who don't love her?  Well they certainly won't be convinced by these autocratic methods, but I don't think she's trying to win them over anyway. Beyoncé knows herself and her audience, and as long as they keep her rich and famous, that's probably enough.

I've seen it argued that Beyoncé's grasp on her self-awareness is tenuous at best if she thinks she can control her image to this degree, but I would argue that she's read the situation better than we giver her credit for.  After all, she hasn't sued anyone to take down the unflattering pictures (to my knowledge, she only sent polite email requests to various outlets), and that fact tells me that she knows where the line is between egomania and villainy and she's not willing to cross it.

So my guess is that while this probably won't make her MORE popular, her brand is as safe as any celebrity brand can be.  But I say that with one caveat: she should avoid alienating the press, because they're the ones who can bring about her destruction.  If you've seen Beyoncé in interviews - as well as the remarkably self-serving HBO documentary she directed about herself - it's clear that she is a person of extreme self-confidence.  And the confidence she has in her abilities has driven some of the press to turn on her and lose their own grasps on reality.

In particular, the National Press Photographers Association.  They're claiming that the restrictions placed on them by Beyoncé and her management team is preventing them from doing their jobs, and that violates the First Amendment.   No, sorry fellas.  I understand that you're angry at having your access to Beyoncé cut off, but the First Amendment isn't applicable here.  Constitutional Law 101 tells us that the First Amendment only prevents the federal government (and state governments through a process known as incorporation) from restricting your freedoms of speech, press, religion, etc.  It says nothing about whether a person or organization can restrict your First Amendment rights... because they can!  Behold the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you can see, not a word leading you to believe that individuals (like Beyoncé!) or corporations (like Beyoncé!) can't place restrictions on the press at events.  In fact, all of the Amendments in the Bill of Rights are there to prevent the government from limiting your rights.  But they apply only to the government.  So while Beyoncé's ban on photogs at her concerts may not be the best PR move, there's no legal reason she can't do it.

Sherlock Holmes and the Case of Copyright Duration

Is Sherlock Holmes in the public domain?  Holmes scholar and lawyer Leslie S. Klinger believes so, and he is suing the Conan Doyle estate to prove just that.

It all started, as these things do, with money.  You see, a few years ago Klinger published a new Holmes novel and, like many who wished to capitalize on the popularity of Sherlock (Guy Ritchie and Steven Moffat in particular), he paid a hefty licensing fee to the Conan Doyle estate for the privilege.

Recently, Klinger decided to have another go at Sherlock; in particular, he wanted to publish a collection of short stories. Once again, the Conan Doyle estate demanded a payout.  Much like the Tolkien estate, the Conan Doyles are renowned to be fiercely protective of their copyright and they doggedly pursue anyone whom they feel infringes it.  This time, however, Klinger decided to sue the estate as a preemptive measure, claiming that Holmes and his entire canon (supporting character like Watson, Moriarty, Mrs. Hudson, the house at 221B Baker St, character traits like Holmes' deductive reasoning and friendship with Watson, etc.) were in the public domain and thus, he didn't have to pay them a licensing fee.

This is a pretty serious move and in all likelihood it has legal support.  That's because in the United States all works published before 1922 are automatically in the public domain and are thus available for anyone to profit from. [Author's note: aside from pre-1922 works, any work whose copyright expires will move into the public domain.]  Sherlock Holmes made his first appearance in 1887's A Study in Scarlet, and nearly his entire world found its way into print before 1922.  By that logic, it's hard to see how the character won't be found to be in the public domain, and if a judge does find for Klinger, that's going to have major repercussions for the character.

In contrast, the estate argues that because Sir Arthur was still publishing Holmes stories as late as 1927, the character and his entire canon don't fall into the public domain. That's where the wrinkle in this case appears.  Apparently, one of the authors whose short story Klinger wants to publish used a Holmes character that didn't appear in a published work until 1924. The case is really interesting and you can read all about it here.

I brought up this issue because of a quote at the end of the article.  When interviewed about the Klinger v. Conan Doyle case, New York based entertainment lawyer John J. Tormey III said that, "Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly."  Amen brother!  On at least two occasions (here and here), I've discussed how the original purpose behind copyright protection in the U.S. wasn't to grant the author everlasting control at the expense of all others, but to foster innovation for the betterment of society.  Our creative landscape is littered with copyright owners (some individuals and families, but mostly corporations), holding their copyrights in an iron death grip, suing the crap out of anyone large or small (usually small), in order to prevent them profiting from that copyright.

That's why I think we need a drastic overhaul when it comes to duration of copyright - in modern political parlance, I would say that I've "evolved" on the matter... which really means I was never a fan of the current duration allowing a copyright to last for the life of the author, plus 70 years (and going up to 95 years for corporate copyright holders), but I just never felt comfortable saying it aloud until now.  Forgive my lack of lawyerly eloquence, but life plus 70 is just too damn long.  Look, I get that if you create something that's profitable, you want to be able to control it, make your living off of it, and provide for you family.  That's a natural instinct and a praise-worthy one.  Piracy - the use of your work without your permission - should be dissuaded and punished where appropriate.

The problem with the current durational scheme is that it results in less innovation and artistic expression and more lawsuits.  Under the current law, the author's estate can use and exploit the author's original work for several generations after he dies. If you can stay rich off of your grandpa's work, what incentivizes you to create your own work of artistic expression...to add something to society?  Even worse, many works of artistic expression end up being purchased by large corporations who use their considerable resources to suppress smaller artists who wish to use those copyrights as points of inspiration for their own work.  [Corporate bullying of individual artists is one of my bugaboos.]

That's why I propose the following four-tiered amendment:

1. A copyright will last for the life of the author and no longer.  Upon the author's death, the copyright will move into the public domain.
2. If the author sells the copyright to another party (a corporation, say), the party will have 15 years to use the copyright.  If the party does not use the copyright in 15 years, the copyright will revert in full back to the author.  If the author dies before the copyright can revert back to him, the copyright will expire and the work will move into the public domain.
3. if the author sells the copyright to a non-corporate buyer, and the buyer uses the copyright within the 15 year timeframe, the copyright will last for the life of the buyer.  Upon the buyer's death, the copyright will move into the public domain.
4. If the author sells the copyright to a corporate buyer and the corporation uses the copyright with the 15 year timeframe, the copyright will last for 70 years, measured from the original sale of the copyright.  At the end of the 70 year period, the copyright will move into the public domain.

I know, this makes me look like an anti-free market socialist.  In fact, I'm willing to bet within two days of publishing this post, I'll get some pushback on the feasibility of this system or the logic behind it.  I don't care though. The truth is, limiting copyright ownership is the best way to spur innovation and growth, which is what our founding fathers envisioned.  A system like this will help limit perpetual copyright monopolies and inspire copyright holders to be pushing boundaries.  Hell, even The Economist agrees that copyright durations should be shorter, so I can't be totally out of my mind.

Sherlock Holmes is probably in the public domain already, but if he isn't, he should be.  Arthur Conan Doyle created him over 120 years ago and his descendants have profited amply from his popularity.  Now it's time for Conan Doyle's great-grand kids to go out there and make their own mark on society and let the world have Sherlock.

The Avengers and Copyright Reform

In honor of the most shoppingest weekend of the year, I'd like to discuss how The Avengers got me thinking about copyright reform.

You see, following the mammoth success of The Avengers this past summer, Marvel Entertainment (owned by Disney) planned to release a six-film box set just in time for the holidays that contained Blu-rays of The Avengers, Iron Man, Iron Man 2, The Incredible Hulk, Thor, and Captain America. The films would arrive in a package that replicated the metal briefcase used in The Avengers to carry the film's MacGuffin, the "tesseract."  Here's what it looked like:

Unfortunately for Marvel, the release of the box set was put on hold when German luggage manufacturer Rimowa GmbH sued for trademark infringement and trademark dilution, alleging that the silver briefcase for the six-movie collection was too similar to one of its products, and that releasing the box set would hurt its brand.  The good news for consumers is that while it won't be ready for your holiday shopping needs, the set WILL be released in April with new packaging and special features.

When I read Rimowa's complaint, I rolled my eyes at their claim of trademark dilution claim (they may have a good case on the infringement claim... but I won't use this space to weigh the merits of that argument).  "Here we go again" I thought.  "Another instance of one giant company wielding their intellectual property as a weapon against another giant company so they can squeeze out a few more pennies."  Then my next thought was "at least it's Disney getting sued and not some poor struggling artist."

As you know, I'm a big supporter of intellectual property protection, especially as it pertains to individual artists and creators.  But when the copyright holder is a multinational corporation, my support for protection becomes less absolute.  I don't like bullies and I especially don't like it when giant corporations use their copyrights* to trample over innovation, even if that innovation means some copyrights get infringed.  And to my surprise, a Republican staffer named Derek Khanna agrees with me, writing a policy paper on copyright reform that recently caused a stir.  In the paper, Khanna argues chiefly that our current system of copyright law actually harms the free market, hurts the consumer, and stifles creativity and innovation.  Khanna further argues that the powers to protect intellectual property granted to Congress in the Constitution were designed not solely to benefit the creator.  Rather, they were created to benefit the public, and creator compensation was just a way to fulfill that need.  FYI, the actual text of the Constitution, Article 1, Section 8 reads that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Khanna recommends several fixes, most of which I agree with.  Expanding Fair use protections (basically, allowing more people to use copyrighted material for certain purposes without paying for it), lowering statutory damages (current damages can see you paying upwards of $150K for each infringed work.  Khanna argues that it's un-American to charge someone millions of dollars for downloading a few dozen songs), punishing false copyright claims (I've talked about this issue before), and significantly lowering the length of copyright ownership from "life of author + 70 years" to 14 years, renewable every 14 years while the author is alive.  Khanna's paper proved so controversial that 24 hours after publishing it, his Republican bosses removed the paper and issued a letter stating that the paper hadn't been properly vetted.  Which makes sense after all; the major media companies (who are also the biggest copyright holders in the world) are big political donors.

In the case of Rimowa v. Marvel, the stakes aren't very high for the average consumer.  People will get the box set they want eventually and if they can't wait, they can go out and buy the films individually.  Disney is going to be just fine... maybe a few million bucks poorer, but that's about it. The underlying issue here is larger than whether I can go and buy a cardboard case filled with movies.  It even goes beyond how much power our current copyright law grants to companies that can use those copyrights to bully the small artist and innovator.  The issue really boils down to whether companies have the same rights as individuals.  Should a company get the same rights I get under the law?  While Khanna's paper rarely singles out corporations as the biggest profiteers and abusers under our current copyright law, it's difficult to imagine that he wasn't thinking about them directly while writing it.   In one passage, he says that "Current public policy should create a disincentive for companies to continue their copyright indefinitely..."  The whole point of the paper seems to be this: copyright too often is used as a weapon to harm individual creators.  Disincentivize that by making copyright ownership less profitable for the corporate owner.  I wholeheartedly agree.  Actually, I will agree with and support just about any reform that takes the power out of the hands of the corporate copyright owner and gives it back to the individual creator.  Art should belong to the artist.

And if the end result is that I can get my Avengers box set sooner than later, then that will be a welcome side effect.

* For the record, yes I do know the difference between copyright and trademark.  For the purpose of this post, however, I'm treating them as interchangeable because they protect different types of the same thing... intellectual property.

Why Movie Theaters Suck and How To Fix Them

Today I'm going to discuss something near and dear to my heart, so I hope you'll treat what I'm about to say with the respect and gravitas it deserves... modern movie theaters suck.  Last week my wife and I went to see The Master and these are some of the myriad distractions that prevented me from engaging with the film:

1. The lady sitting behind me kept kicking my seat and futzing with her cell phone.
2. An old man several seats away kept mumbling to himself throughout the film.
3. A middle-aged lady kept shushing the old man to keep quiet, and when the shushing didn't work, she outright yelled at him.
4. That same middle-aged woman left the film after an hour (along with her two companions) never to return.  They made quite a ruckus when leaving.
5. A woman came in 3/4 of the way through the movie and sat in a seat next to me.  She started munching loudly on some snacks that she had smuggled in from home, and shifted in her seat.  She then left the theater after 10 minutes.
6. Halfway through the film, five ushers came in and stood at the entrance crunching on popcorn and talking loudly to each other.

For a long time, movies were my religion and the cineplex was my temple.  I worshipped frequently: with friends, family, and often by myself.  While I noticed the decline in the viewing experience over the years, I kept going because I wanted to give my business to films that needed and deserved my support.  Nowadays, I've largely become a theater expat.  Why?  I don't remember the last time I went to see a movie and didn't have the entire experience ruined by people talking and texting, children yammering at age-inappropriate films, and the relentless stickiness of every surface.  Movie theaters have become a wholly unpleasant way to spend a few hours.  When I go now, it's only for the films that I've been hotly anticipating or that demand a 50 foot screen.  For the rest, my home theater will do quite nicely.  Like me, many of you have stopped going with regularity.  The figures certainly bear that out... despite this summer seeing two films that annihilated the box office (The Avengers and The Dark Knight Rises), summer movie ticket sales have declined by $100 million since 2002 and movie ticket sales as a whole are at their lowest in decades.

There's a great article over at Fast Company that discusses how design is the key to improving the theater experience and increasing ticket sales.  The crux of their argument is that theater owners are trying to compete with home theaters, Netflix, Hulu, Apple TV, and Blu-ray.  That means buying the latest digital projectors, sound systems, and investing in 3D and Imax technologies.  Except, home movie watching isn't competing with theaters for business.  Rather, movie theaters are really in competition with Friday night social venues - such as clubs, restaurants, bars, bowling alleys, etc. - and Fast Company argues that theater owners should be rebuilding the entire movie-going experience around that social engine.  Some of their suggestions are fascinating and could work really well: liquor bars, private viewing boxes for large groups, intimate lounge areas near the actual theater.  One of their most intriguing ideas is to set up a "trailer lounge" where you can gather with your friends in a comfortable seating area and watch the latest trailers and discuss them without fear of being shushed.  [I personally suggest instituting a tiered pricing system and assigned seating...the Arclight Theater in Hollywood does this.]

I applaud this out-of-the-box approach and I sincerely hope that some intrepid theater owner will be willing to embrace these innovative ideas.  For anyone fed up with the state of the modern movie theater, the article is a must read.  But Fast Company only gets at part of the problem.  You see, while the act of "going" to a movie is generally a social activity, the "watching" of the movie is decidedly solitary; after all, you are compelled to sit in silence for two hours. So while theater owners can gussy up the pre- and post-show experiences, the movie-watching experience remains largely unchanged.  And that's precisely the problem: the movie-watching experience has been substantially compromised by strangers bereft of cinema etiquette.  Personally, I don't care if the lobby is nice or that the film is being projected with the latest digital technology.  All the amenities in the world can't make me enjoy a film that I can't hear or see because of inconsiderate theater-goers.   Tim League, owner of the Austin-based Alamo Drafthouse theater, agrees.

A year ago, League earned some fame by ejecting a customer who texted during a movie despite two warnings to stop (because of theater policy, the customer was not refunded her money).  League blogged about that incident here.  The customer was so incensed that she left a voicemail at the Drafthouse, which League turned into a "Don't Talk or Text PSA."  Here it is in all it's hilarious glory.

[youtube http://www.youtube.com/watch?v=1L3eeC2lJZs&w=560&h=315]

League has hit upon exactly the right strategy for making the movie-watching experience better (and thus more appealing to customers): TOSS THE BUMS OUT!   It is so simple, so affordable, and so effective that I can't believe no one has implemented it in any meaningful way.  In the golden age of cinema, theaters employed uniformed ushers to patrol the theater and remove the riff-raff.  Most theaters don't do that anymore and I can't figure out why.  After all, there's virtually no legal downside.  Businesses can't discriminate on the basis of race, gender, disability, age, etc., but they can generally pick and choose with whom they wish to do business.  Furthermore, businesses are allowed to expel customers from their property for just about any reason.  When you go to a movie, you are being invited onto private property.  Such an invitation is revocable anytime by the business owner because your presence on the property is a privilege, not a right... even if you paid to be there.

Theater chains must know that if they were sued by expelled theater goers they would almost certainly be judgment proof.  So if there's no fear of a lawsuit, why don't they just kick out unruly patrons?  Are they afraid of bad press?  Are they afraid of physical confrontations?  In my opinion, it's most likely inertia combined with a deep-seated apathy; once they have your money, they don't care if you have a pleasant experience.  In fact, some chains, namely Regal and Imax, are doubling down on the bad experience angle by creating "texting friendly theaters"!!  League has spoken out about that here.  He writes that

"By introducing screenings where people are free to text during the movie, you will be creating unhappy customers at every single session.  It really boils down to the undeniable fact that texting in a movie theater is rude, selfish, and adversely affects everyone within view of your glowing device.  The only answer to this debate is taking a hard line.  Texting and talking can not be allowed in movie theaters.  Our spaces are sacred spaces for movie fans... To me, the leniency towards talking and texting is a greater threat to our industry."

I agree with that sentiment and I think most of you agree with it too.  There's a reason why theater ticket sales are down, and I wager it's mostly because going to the movies has become intolerable.  If the theaters don't care about my experience, then why should I pay for that experience?  In response to the rude texter who he ejected, Tim League wrote,  "you may be free to text in all the other theaters... but here at our 'little crappy ass theater,' you are not.  Why you may ask?  Well, we actually do give a f*$k."  I think that more amenities, features, and radical design makeovers will definitely help to increase ticket sales, but undoubtedly the future of the movie theater industry will rest on whether theater owners start giving an old-fashioned f*$k.

Lululemon is Literally Suing The Pants Off Calvin Klein: Intellectual Property Upheaval in The Fashion Industry

It will come as a surprise to no one that I don't know thing one about fashion or the fashion industry.  In fact, I recently suggested to my wife that she start a blog called "Things I Make My Husband Wear" that would chronicle her efforts to teach me about the importance of clothing and turn me from someone who looks like  a shiftless farmhand into a professional adult.  Time will tell if she decides to take on this monumental endeavor.

But even I know when something strange is afoot at the Circle K*, and the month of September has seen the rumblings of a shift in the way the fashion industry operates, as designers scramble to protect their work in ways that have historically been off-limits.  A few weeks ago, my friend Lauren sent me this link explaining how popular yoga-pant trafficker Lululemon is suing Calvin Klein for infringing its patent by copying its "Astro" pant design; specifically, the lawsuit alleges that Calvin Klein ripped off the Astro's waistband as well as two other design elements.

Here are the pants in question:

The lawsuit is surprising, since copycatting in the fashion design industry is so generally accepted.  In the fashion world, suing a copycat over patent infringement is uncommon because design patents are so hard to obtain in the first place and even harder to protect.  There are two kinds of patents: Design patents which protect "original and ornamental design" and utility patents which are far more common and protect physical inventions that possess some level of usefulness. [Copyright law doesn't apply here since copyright protects forms of expression, whereas patent law protects items that are functional.]  So why are design patents so hard to get in the fashion world?  According to attorney Adrian Pruetz, "[i]t's very hard to come up with something that's new and that hasn't just been part of the clothing vernacular."  After all, everyone wear some variation of pants, shirts, and shoes, and finding something unique is difficult because the history of clothing design extends back for over a thousand years.

The copycatting has gotten so out of control that NY Senator Chuck Schumer sponsored a bill** that would provide some intellectual property protections for designers.  The bill, which just passed out of the Senate Judiciary Committee last week, would aim to protect fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian.  Schumer, of course, has some selfish reasons for sponsoring this bill: New York is considered by many to be the nation's fashion capital, employing over 200,000 people in the industry, so this bill is as much about protecting jobs as it is about protecting patentable innovation.

Enough of the news, here's my take: I'm all for the Schumer bill and any reasonable patent protections for fashion designers in general.  A running theme in this blog is my support for protecting the work of artists, and I see no reason to deviate from that now.  But some people have argued that design patents are more trouble than they're worth and should be limited or even abolished.  Ilse Metchek, President of the California Fashion Association, says "[t]his whole notion that you'd grant a patent to anyone who adds a seam or two to a waistband is quite problematic. It's only going to create more litigation, and that's hardly something the fashion industry needs more of."  I can see her concern.  Clothes are a necessity of life and if you permit designers to repeatedly sue other designers for infringement, you affect not just other fashion houses, but literally everyone.  Clothes would become much more expensive and only the companies who could afford to withstand lawsuits would survive.  That would stifle artistic expression and innovation.  Bad medicine indeed.

Which is why the Schumer bill is a good start: its patent protections are very limited and would only extend to designs that are extremely unique and distinguishable.  Furthermore, the protection would only last for three years from the date of publication, would provide certain liability limitations (such as no liability for someone who copies a design for home use only), and would force plaintiffs to plead detailed facts in their initial complaints in order to limit frivolous lawsuits.  Designs that predate the bill's enactment would not be eligible for protection and would thus be public domain.  The entire bill smacks of reasonableness, which frankly means that everyone will hate it.  But the bill is designed around an industry that is built on copying others and it recognizes that reality.  In my opinion, it's a good way to let people protect their work, while still allowing room for copying designs not unique enough for protection.

As for the Lululemon/ Calvin Klein row, I won't debate the merits of the case here since I haven't seen the court documents. I will say that Lululemon is clearly making a stand here against Calvin Klein, Gap, and any other retail chain that threatens its business. I have no dog in this fight, but there are plenty in the fashion industry that do.  It should be interesting to see what happens.

* Sixty quatloos to the person who gets this reference.  Please state your answer in the comments section below.

** Thank you to my lovely wife for pointing out the existence of this bill!