Ivanka vs Supreme Court

ivanka, knockoff shoes, supreme court

Fashion entrepreneur and shoe designer Ivanka Trump may be among the first to face actual consequences for knock off crimes in a case pitting her against high-end Italian footwear company Aquazzura—all thanks to a brand new Supreme Court Ruling.

The ruling is the not yet controversial Star Athletica, LLC v. Varsity Brands Inc. Decision It is an interpretation that may very well cause global warfare within the Fashion Industry and has the potential to completely kill the knock off industry.

Before we get to the wide sweeping details of the ruling, lets dwell on the prurient details of Ivanka’s shoe dilemma for a moment.

Ivanka is not only being sued, but hilariously shamed in public by all the considerable drama available to the fashion design community.  Not only is she being called a liar and a thief in public, but she is being dragged in social media by upscale Italian shoe designers.

Which: We can’t even.

Aquazzura’s suit was filed Tuesday in a Manhattan federal court is related to the super-sexy Wild Thing shoe ($785), a red fringe festooned, high-heeled sandal that appears to be an original model for Trump’s Hettie stiletto ($145), which sells through retailers like Bloomingdales, Lord and Taylor, and Nordstrom. You can compare the two designs yourself: They look pretty similar–but are they similar enough for damages in court?

Photos: Courtesy of Farfetch.com, left, and Pinterest, right

Hilariously and with great outrage, the Founding designer of Aquazzura, Edgardo Osorio, Instabombed Ivanka during Paris Fashion Week on Instagram,

He posted:

“One of the most disturbing things in the fashion industry is when someone blatantly steals your copyright designs and doesn’t care. You should know better. Shame on you @ivankatrump! Imitation is NOT the most sincere form of flattery.”

Which is tantamount to sinking someone’s battleship in the industry.

Osorio told Footwear News he has “nothing against Ivanka Trump” personally, but rather with the copycat culture of the women’s footwear industry. “I plan to do the same with Steve Madden and other people who have ripped us off,” he told the publication. “Even some of my direct competitors are copying me … Sometimes I look at the buys in department stores, and I see copies of my shoes. We need to be harder with our retailers. They need to protect us. You can’t cannibalize one business with another.”

Which could be cut and pasted and attribute to about a thousand other designers with very real (and sometimes imagined) complaints about the largest copycat industry in the history of the world.

Aquazzura filed suit against Ivanka for at least three different alleged examples of shoe design thievery, the Huffington Post reports. Also named in the suit is Marc Fisher, the manufacturer who works with Ivanka to make the hot shoes and the lawsuit mentions “repeated infringement” and “deceptive trade practices.” We will not be the first to mention jokingly that both phrases could be considered proprietary Trump brand.

Marc Fisher’s CFO, Matthew Burris, told Yahoo Style, “This is a baseless lawsuit aimed at generating publicity. The shoe in question is representative of a trending fashion style, is not subject to intellectual property law protection, and there are similar styles made by several major brands. The lawsuit is without merit, and we will vigorously defend ourselves against the claim.”

All kidding aside, they may have their work cut out for them.

In any previous year, one would expect a bit of a circus which would end in the aggrieved parties getting a lot of emotional relief, but not much legal relief because knock offs are a long standing part of the fashion industry.

But that all changed this year with the implications of the Star Athletica Decision.

The Supreme Court’s 2017 decision in Star Athletica, LLC v. Varsity Brands Inc. plowed open new legal territory for the entire fashion industry as well.  Despite the establishment of copyright rights in the U.S. Constitution, Star Athletica is the first Supreme Court decision that addresses the copyrightability of clothing.  Specifically, the decision establishes a test for determining when design elements of an article of clothing are protectable by U.S. copyright law.

The possible implications of applying copyright to fashion were obvious enough that Justice Sotomeyer openly exclaimed in court that such a view would completely kill the knock off industry. (And by implication, Ivanka’s right to sell suspiciously tassled red shoes)

The excellent Ronald Mann over at SCOTUSBLog reports:

Sotomayor started off the barrage by asking whether “the universities that contract with you know that they have to buy their uniform from you for 99 years plus whatever? Every university that you sell these cheerleading uniforms to, do they know that under your copyright they are stuck with you forever?”

William M. Jay for respondents

William Jay for the respondent (Art Lien)

Breyer followed up with an even more aggressive line of questioning:

“I have exactly the same question … All women’s clothes have design. All men’s clothes have design. For a hundred and more-than-that years, the fashion industry has not enjoyed copyright protection. It is an industry on the women’s side, I believe, that [sells] 225 billion dollars, at least, worth of clothes … each year. If suddenly in this case we say that dresses are copyrightable – and they are because every one of them has some design – perhaps we’ll double the price of women’s clothes … Why don’t you disabuse me of my notion that we are into monopoly big-time?”

Embracing Breyer’s concern, Sotomayor interjected: “You’re killing knock-offs with copyright. You haven’t been able to do it with trademark law. You haven’t been able to do it with patent designs. We are now going to use copyright law to kill the knockoff industry. I don’t know that that’s bad. I’m just saying.”

Closing the discussion with emphasis, Justice Breyer concluded: “I fear that any good designer or lawyer could go and take any dress or suit, just about, and produce a picture that looks very much like that and then sue the companies that use the same dress or style.”

 

Copyright protection pre-Star Athletica

Star Athletica is the most significant development in the copyrightability of clothing and fashion accessories.  Copyright prohibits third-parties from copying “original works of authorship,” which include literary, dramatic, musical and artistic works. To qualify as an original work of authorship, a work must originate from the author (rather than being copied from someone else), and must possess a minimum level of creativity.   This has been way too much for the courts when it comes to clothing, much less fashion. That is till now.

The Star Athletica decision

The Supreme Court agreed to review the case, and articulated the following test, which will now apply nationwide:

“a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work — either on its own or fixed in some other tangible medium of expression — if it were imagined separately from the useful article into which it is incorporated.

In applying this test, the Supreme Court basically found that if all the elements of design were removed from the cheerleading uniforms and applied to a different medium —like a digital background or a rug — they would qualify as two-dimensional works of art.

Therefore, the Supreme Court found that design elements are independently copyrightable’ and featuring the design on clothing doesn’t weaken its copyrightability.

The decision established for the first time in American Law that separable elements of a clothing design may be protected by copyright.

Given the limited legal protection afforded to fashion designs, this case may provide a valuable weapon for luxury brands like Aquazzura to successfully sue Ivanka for copyright infringment.

In fact, it opens the door to a whole new era of litigation with some of the most litigious and drama fueled personalities on the face of the earth.

Heaven knows what will happen to this poor girl.

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