The internet age has magnified many of the legal issues creators and fashion businesses face. This has led to the need for legal advice and protection.
As an example, recent trends in design piracy, copycat litigation, and fashion design theft have prompted new legislation to provide legal protection for fashion designs.
We reached out to a lawyer to discuss these and other issues that face creators.
Ashley N. Cloud is the Principal Attorney and Founder of The Cloud Law Firm, PLLC based at Brooklyn, New York.
What inspired you to become a lawyer?
My mother was the first to suggest that I become an attorney. My mom was very strict and I would always advocate for myself to be with my friends over 2 hours. We would have full-on debates and I’d write her letters with carefully crafted arguments. I was unstoppable.
Although I was very convincing, most of the time, my mom’s answer was usually still “no,” but she figured I would be able to help others with my talents. My mom introduced me to the idea of becoming a lawyer. It made perfect sense. I’ve never been one to accept the status quo. I’ve always been quick to point out unfairness and injustices and I never shy away from the opportunity to help those in need.
Black women make up only 2% in the legal profession. Although the road was not easy, it has been well worth it. Representation is important and the work that you do will have a positive impact on your community. It gives me great joy to be a voice of the voiceless, and to educate and empower people like me.
It is an honor and a great privilege to be able to do this. I have so many ideas about how I can continue being a positive force for the world. I’m just starting!
What should creators include when negotiating brand partnerships?
Creators will often be presented with brand partnership agreements. Here are some clauses to keep in mind. They include, but not limited to, Compensation, Deliverables. Exclusivity. Termination. and Disclosures.
Compensation is important for obvious reasons – you want to make sure you are aware of what you will be paid, any conditions associated with payment, and when you should expect your payment. Deliverables are important. You should understand what the brand requires of you, and make sure that your work is consistent with their expectations. It is likely that there will be an approval process. You need to make sure you comply with it.
Brands may require that you work exclusively with them in their industry. If you are working with one shoe company, for example, you might be prohibited from working with any other shoe companies during your agreement. You should pay attention to the length and conditions of the agreement. This includes any morality clauses.
If you are a content creator, you’ll also want to pay attention to any disclosure requirements, as the Federal Trade Commission requires you to disclose your relationship with any brands you promote. You can check out some helpful guidance on the FTC’s guidelines here.
Kim Kardashian was recently ordered to pay over $1 million for violating the FTC’s rules, so you’re going to want to pay attention to this!
In any case, you will want to read your contract, ask questions if you don’t understand something, and remember to know your worth! If you are unhappy about the terms of your agreement, advocate for what you want.
If you are unsure if the partnership is right for you or if you still don’t understand the implications of the terms of your agreement, I suggest you reach out to an attorney you trust to assist you.
What are some common misconceptions regarding fashion law?
One of the biggest misconceptions about fashion law is that it’s all about intellectual property. Although intellectual property is an exciting aspect of fashion legal, there are so many more aspects to fashion law.
Fashion is a multibillion dollar industry. Fashion can be glamorous but, like all other industries, it is not glamorous. Business. Apart from intellectual property, fashion laws include business law as well as contract law, labor law, employment law and real estate law. International law also covers e-commerce, privacy law and supply chain law. Technology law, consumer protection, environmental law and many other areas. Every aspect of a fashion company is covered by the law.
As the creator economy grows, what types of legal matters do you foresee arising?
With the lower barrier to entry and easier access for consumers, creators are increasing in number. I see the most popular legal issue growing in popularity as the Non-Fungible Tokens, blockchain and the Metaverse.
Because the law hasn’t quite caught up with this facet of fintech and intellectual property, I am interested to see what types of precedents are established to help further guide creators and attorneys in this space.
Which are some of the most interesting recent fashion law suits? These are some lessons designers can take away.
Recently, Skechers USA Inc. filed a lawsuit against Hermès International and Hermès of Paris, Inc. for patent infringement in relation to its Massage Fit sole technology. This case is a great example of how to properly enforce and police your intellectual property rights.
Skechers has pursued brands for similar infringement. With the popularity of the thicker, chunky shoe sole emerging in recent years, it will be up to the courts to decide if Hermès infringed on Skechers’ patents or if the company is simply hopping on a popular trend not originated by Skechers.
Afrochella, a popular Ghanaian festival of music, is another notable case. Although it is not fashion related, it falls more within entertainment. Allegedly, Afrochella has infringed on Coachella’s trademark and goodwill in the promotion of Afrochella.
There are arguments on both sides on whether Afrochella should be held liable for infringing on Coachella’s trademark. Afrochella explicitly identified its festival as inspired by Coachella, which some argue creates an unauthorised affiliation between the two brands.
Another argument is Afrochella is held only in Ghana. The company should not be allowed to use its name as it doesn’t currently host its festival here in the United States. It will be interesting to see how the courts rule on this case and if brands can reach an amicable agreement.
How can smaller designers protect their work from being copied?
Fashion designs are subject to formal intellectual property protections (i.e. The shape, style and cut of a garment are practically unprotected. As a fashion designer, there are several ways to protect certain aspects. You can copyright protect any original print, pattern, or sculpture that is attached to a garment. You can also obtain a utility or design patent to protect certain types creations.
You should also protect your assets brand Trade dress and trademark protection. You can also protect your designs by signing contracts with other partners. For example, you can require the manufacturer of your designs to sign a non-disclosure and non-compete agreement so they don’t disclose your design to another brand or try to replicate your design by creating a knock-off of their own. You may be entitled to damages and sales compensation if they violate your contract.
Designers can also use the power of the communities to fill the gaps in the law. If you are a designer who is inspired by your design, share it via social media. It’s a lot less expensive and you may be able to resolve the dispute a lot quicker than suing in court.
Ashley is originally from Houston, Texas. She graduated from the Howard University School of Law as well as the School of Business. Ashley is licensed to practice law throughout New York, Texas and the District of Columbia. Keep up to date with @thecloudlawfirm or @yourfashionattorney You can also visit www.thecloudlawfirm.com for more information.
Disclaimer: This website’s information does not constitute legal advice and is not intended to do so. All information, content and materials on this site are provided for informational purposes only. The information on this website might not be the most up-to date legal or other information. This website has links to third-party sites. These links are for your convenience, the user, or browser. Ashley N. Cloud & The Cloud Law Firm LLC do not endorse the content of these third-party sites.
For advice regarding any legal matter, readers should contact their attorney. Any reader, user or browser of this website should not act or refrain to act on the basis information contained on this site without seeking legal advice in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. The use of this website and any links or resources within it do not create an attorney/client relationship between the reader, the user, browser, contributors, law firms contributing to the site, or committee members and respective employers.
This site does not accept any responsibility for actions taken or not taken as a result of the contents. The content on this posting is provided “as is;” no representations are made that the content is error-free.
Similar