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Fashion and law intersect

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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.
 

Allen Attorney Niquelle Allen was working for Eli Lilly when she decided to quit in April 2009 to follow her dream to open her consignment store, Butterfly Boutique, in Indianapolis. She also works for a law firm part-time. (IL Photo/ Perry Reichanadter)

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 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 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.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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