Fashion and law intersect

As the fashion industry continues to grow in Indianapolis – including a handful of fashion design programs at colleges and universities in central Indiana, and at least four organizations for local designers and supporters of fashion in Indiana – an upcoming lecture about the intersection of fashion and the law just seems to make sense for the design community and the legal community.

“Fashioning the Law of Design” will take place at Indiana University School of Law – Indianapolis, 530 W. New York St. at 5:30 p.m. Nov. 9. The lecture is the Jordan H. and Joan R. Leibman Annual Forum, which has traditionally included topics that somehow touch on art, business, and law.

This program will include intellectual property attorney Kenan Farrell, a solo in Indianapolis who graduated from the law school in 2003 and previously practiced in San Francisco. He represents various players in the local fashion community, including designers and makeup artists, as well as visual artists, musicians, and others in creative endeavors around the world but mostly in Indiana.
 

The other featured speaker is Beth Bennett, founder and owner of Beth Bennett Couture, where she makes custom clothes for clients. She is also an adjunct professor who teaches fashion design courses at the Art Institute of Indianapolis, and has and continues to design costumes for theatre productions in Indianapolis.

After Farrell and Bennett address the audience, the conversation will continue with a question-and-answer session, followed by a reception in the law school atrium at 6:45 p.m. The event is free and open to the public, and includes 1.3 hours of CLE credit.
 

Bennett

Farrell and Bennett have similar stances on the legal issues of fashion, which they plan to address at the lecture.

For instance, both disagree with the Innovative Design Protection and Piracy Prevention Act, which was introduced in Congress Aug. 7. However, it does have the support of the both the Council of Fashion Designers of America and the American Apparel & Footwear Association.

It’s not because either Farrell or Bennett disagrees with the protection of trademarks. Neither one thinks it’s OK for fake goods to be passed off as their brand name counterparts. For instance, they agree that a purse that looks like it was made by Coach, that includes a Coach label, shouldn’t be sold for a small fraction of the price by a street vendor.

But they don’t think a fashion design on its own should be patented.

For instance, Farrell pointed out that because fashion moves so quickly, a design on the runway in the fall could be passé within six months, not to mention within two years or longer that it would take for a patent to be processed.

Not to mention how congested the courts could become if someone could file suits over fashion designs. Clothes, unless passed off as having a trademark they do not really have, are considered a utilitarian item, like food or certain car parts that also have limited intellectual property protection.

Farrell

Another issue he said that could hurt even the bigger manufacturers is that fashion doesn’t just trickle down, but designers also can get inspiration from what they see people wear on the street.

So if a designer happened to see an outfit on a design student and copied it, and the student figured out that her look was copied exactly, under the proposed act the student could sue the designer if the student had the means, Farrell said.

Bennett said it’s rare for a designer to want to copy another design exactly. At least that has been the case with her and other designers she knows of in Indianapolis and her students.

Because she makes everything custom, even if a client shows her a photo of a wedding dress she really likes, Bennett said she will still modify it enough to better suit the client’s style and fit, and to make it an original design.

She said she has some concern that someone could copy one of her designs, but the closest she has come is someone using a photograph of one of her dresses and passing it off as her own on a website.

Bennett said she has been lucky not to need a lawyer so far. But in case she does, she said she documents every fitting and every meeting with her clients, and then has the clients sign those documents, so there’s no confusion later on either side.

Another example of fashion and law intersecting is attorney Niquelle Allen’s shop in Indianapolis, Butterfly Consignment.

Allen practiced at Ice Miller from 2004 to 2007, then at Eli Lilly from 2007 to 2009.

Because she had shopped in consignment stores since she was in college in the late 1990s, she had always wanted to open her own store. But it wasn’t until April 2009 when she had a conversation with some of her best friends about their dream jobs that she decided to do it.

While her friends mentioned jobs like Oprah’s personal assistant or having a cooking show on cable, hers was the most attainable and they encouraged her to follow her dream.

She then read a book about resale shops that she had bought a year ago, and quit her job shortly after. Before opening her store in December 2009, she took a few classes through the Business Ownership Initiative of Indiana, which is affiliated with the U.S. Small Business Administration.

In June, she started practicing law again but only on a contract basis with a new Indianapolis firm, Fleming Stage, which consists of attorneys who are also Ice Miller alums.

Allen said her legal experience has been useful in her business including contracts for consigners – 50 percent of each sale goes back to the consigner; trademark issues for brand name items – she will not sell counterfeits in her store; and her experience in employment law matters has helped her deal with her employees and customers.

“I’ve learned from my experience in employment law it’s better to be honest because if you’re not, it can come back to haunt you later,” something she emphasizes with her employees, she said.

For instance, if a consigner comes in with a jacket that’s unacceptable because it’s out of fashion, it smells like cigarette smoke, it has a defect or stain, or if there’s any other reason the store wouldn’t carry the item, Allen said it’s better to explain to the customer, nicely, why they won’t accept the item.

Like Farrell and Bennett, Allen supports the growing community of designers in Indiana. She carries three categories of items: “pre-loved”; “N” love, new items from boutiques; and “made with love.”

She carries “made with love” items from 15 vendors around the state, mostly businesses owned by women, including jewelry and accessories, such as purses by ReFind Originals Recycled Leather Bags, and handmade soap by Curat Clean, both based in Indianapolis.

All three expect fashion will continue to grow in Indianapolis, and “why not?” Farrell said. “Indianapolis is one of the top 10 growing cities in the country, many young people live here who are well educated and have money to spend,” he said.

He added that because of this, there will likely be more legal issues for those who are involved with fashion.

“For any industry to grow, you need all the players in place, including the lawyers,” he said. “Lawyers need to focus on intellectual property and fashion, and the business of fashion, so the designers can focus on being creative.”•