Althouse: "That's the best way: You just get on with the whole thing. Never mind suing anyone. And just do something different."

October 15, 2011

"That's the best way: You just get on with the whole thing. Never mind suing anyone. And just do something different."

That's Bill Cunningham, the NYT fashion photographer/commentator, talking specifically about the failed lawsuit over red soles on shoes, and, in the process, making a nice general point about litigiousness.

ADDED: If you watch the clip, you'll see Cunningham doesn't think much of Christian Louboutin for suing to protect its distinctive trademark red soles. It lost the lawsuit against YSL. But he mainly jumps forward to delight at the other shoemakers who are making other colorful soles. We see yellow and blue soled shoes.

It's not very coherent as a legal concept. He never says YSL should have picked a different color than red. He just likes the other shoemakers who find something different to do. But does that mean that Louboutin should have found something different than bringing a lawsuit? It's not at all clear.

I think Cunningham is saying: I don't care about law! Law isn't delightful! Extravagant shoes are delightful! Let's engage with the things in life that are delightful!

27 comments:

Fred4Pres said...: That Bill Cunningham New York documentary is facinating. I am not into fashion, but he is a really interesting guy.

Because he is really a decent guy.; 10/15/11, 11:24 AM
Fred4Pres said...: Bill is right about lawsuits over things like that. But if you watch the documentary you will see he had some mega wealthy investor who put a small sum in his hat story (he was a hatter) but he got drafted for the Army. As Bill said, the thought of not serving never entered his mind. This rich investor got all huffy over it, so Bill had his family pay them off and then he paid back his family.

Some people suck and other people are stand up.; 10/15/11, 11:27 AM
Carol_Herman said...: You know he has a DVD out, don't cha?

It's called BILL CUNNINGHAM New York. And, I loved it! (I bought it from Amazon. And, I'm donating it to my library.)

Bill Cunningham has been at the NY Times for ages and ages. He's 80 years old.

He photographed everybody who was important in New York's culture climate.

And, he had an interesting habit ... because he bicycles around New York City every single day. Of focusing on what women are wearing. And, in particular, shoes.

So there's lots of pictures of women jumping puddles. Some? Famous models. Others, just gals walking about the city.

In the DVD, Bill Cunningham, who has a phenominal memory. And, the filed negatives to go with it ... Points out to a dress made by a designer in the 1950's. Where the pattern motif shows up, again.

Can you make a point about copying something? You betcha. Especially when it's shown page next to page. No lawsuits are involved.

By the way, fashion is a part of history. It changes fast enough. That all the old magazines that entertained you ... have practically all disappeared.

At least there's Bill Cuningham's extraordinary records.; 10/15/11, 11:38 AM
Fred4Pres said...: Oh baby Obama, I am starting to sound like Carol Herman!; 10/15/11, 11:42 AM
Wince said...: Actually, Cunningham's "never mind suing anyone... just do something different" gets the trademark paradigm completely backwards.

The plaitiff claiming the red sole trademark was the party that sued in order to protect its exclusive right to use red soles.

The defendants, who were sued and lost, were the ones who eventually changed colors to "get on with the whole thing" by just doing something different.

He should have said "do something different" in order to avoid being sued.

Kind of a "different" take on litigiousness.; 10/15/11, 11:43 AM
Wince said...: Or Cunningham could have said don't litigiously defend yourself from a lawsuit (if unsupported on the merits), "just do something different."

Still, a different take on litigiousness.; 10/15/11, 11:48 AM
Ann Althouse said...: I'm talking about the specific clip I linked to, not the movie about him, which I'm sure is pretty interesting. Will watch if I see it On Demand.; 10/15/11, 11:51 AM
Ann Althouse said...: "Or Cunningham could have said don't litigiously defend yourself from a lawsuit (if unsupported on the merits), "just do something different.""

You'll see he doesn't think much of Christian Louboutin for suing to protect its distinctive trademark red soles. It lost the lawsuit against YSL. But he mainly jumps forward to delight at the other shoemakers who are making other colorful soles. We see yellow and blue soled shoes.

It's not very coherent as a legal concept. He never says YSL should have picked a different color than red. He just likes the other people who find something different to do. But does that mean that Louboutin should have found something different than bringing a lawsuit? It's not at all clear.

I think Cunningham is saying: I don't care about law! Law isn't delightful! Extravagant shoes are delightful! Let's engage with the things in life that are delightful!; 10/15/11, 11:55 AM
Lucius said...: Amen, sister!; 10/15/11, 12:02 PM
Fred4Pres said...: Bill's comment was on point, don't bother suing, just be different! He did not mean it as tort reform comment, but more about being creative and going with that (I mean seriously, YSL was the first ever who did red soles?).; 10/15/11, 12:11 PM
Fred4Pres said...: And Ann, that is right, that is exactly what he is saying: Lawsuits are borring, colorful shoes are fun.; 10/15/11, 12:12 PM
Fred4Pres said...: I am not into fashion (I am definitely not into the cost of fashion). But I do enjoy the spectacle of women balancing and walking on colorful shoes.; 10/15/11, 12:28 PM
Mark O said...: There's really nothing more delightful than suing someone into oblivion. Well, except the splendid delight of wearing women's shoes.; 10/15/11, 12:58 PM
Wince said...: Woops, I thought I heard him say the plaintiff designer won the lawsuit, and the loser defendant moved on to choose other colors.

Mea culpa.

wv - "fatickst" = what they require you to buy when you're too wide to fit in a normal seat; 10/15/11, 1:03 PM
ricpic said...: Decline and Fall

Once Eustice Tilley strode the boulevards
With head held high and nose in the air;
Now Bill Cunningham with nose to the ground
Is on the prowl for underfoot flair.; 10/15/11, 1:15 PM
Anonymous said...: The main economic purpose of trademark protection is to save the consumer time.

The trademark is a key signal to all the other characteristics and qualities associated with it.

See red souls on the shelf? Oh! that's a Louboutin. Time saved.

So, does it really save time with a shoe? Am I really using the red soul to save me time when I grab a shoe off the rack?

And is it really important that I not accidentally buy a St. Laurent?

And would I just buy any old shoe with a red soul even if it wasn't a Louboutin?; 10/15/11, 1:35 PM
cubanbob said...: @Ann

If you would please comment as a law professor on this case as I personally have a somewhat related litigation issue with respects to copyrights. Just curious to get an opinion (no i am not asking for specific legal advise).

As far as I know color cannot be copyrighted so the idea of a copyright for a red sole seems a bit ludicrous.

It is in essence using the copyright law to obtain a de facto patent. Now I can see a possible trade dress case by Louboutin since they have spent tons of money in advertising to create the connection of red soles to their items but copyright infringement seems really weak.

And as for a trademark, does trademark law allow for trademarking a color? Sounds a bit silly. It's not as if Louboutin invented or created the color red and that shoe soles were never colored prior to his doing so and there is something unique about his red that would identify the color no matter what the item with his company.

A red shirt doesn't confuse anyone in to thinking its a Louboutin design. A Burberry plaid design on a shoe, handbag, wallet, scarf, shirt or skirt or raincoat does indicate to the viewer that the design is a Burberry.

I don't know how much money YSL spent on its attorney's fees but Louboutin might be looking at some serious money when YSL ask the court to award them their fees and costs.

Louboutin was apparently given a lot of bad advise by their lawyers. They should have done their homework and not try to use YSL as an example to the rest when simple cease and desist letters with vague threats would have been more effective in the long run. Now everyone and their uncle will sell red colored soles to their heats content (about two season worth).; 10/15/11, 2:23 PM
rhhardin said...: I thought that in fashion nothing but the label could be copyrighted or trademarked. Copy anthing else.

Supported by a podcast that I will now find...

Johanna Blakely on Fashion; 10/15/11, 2:24 PM
Alex said...: Somebody should tell that to Apple. This chasing Samsung around the world in the courts is disgusting behavior for a company that's dominating iPhone/iPad sales and has $90 billion in cash. It reeks and I hate Apple users that much more.; 10/15/11, 2:25 PM
yashu said...: Echoing Fred & Carol, BC NY is a great documentary, surprisingly poignant.

Such a singular character. Amazing, really: to be at once completely submerged in that world, maybe the most decadent milieu on earth (NYC fashion & socialite elite), and be absolutely not of it, absolutely uncorrupted by it.

An ascetic who revels in the beauty of the vainest, most worldly of things: fashion. He documents fashion with a delight as pure as a Buddhist monk contemplating a flower. A saintly photographer's eye.

It makes for an interesting comparison with the George Harrison documentary, which also treats this theme: "Living in the Material World." Two men who strove in very different ways to maintain a kind of spiritual transcendence in a vocation & milieu you would think diametrically opposed to it.; 10/15/11, 3:52 PM
Jennifer said...: (I mean seriously, YSL was the first ever who did red soles?).

You mean Louboutin. And, yes.

So, does it really save time with a shoe? Am I really using the red soul to save me time when I grab a shoe off the rack?

That's not the purpose of the distinguishing red sole. The red sole - for a while there - instantly distinguished a shoe as Louboutin. See a celebrity on the red carpet, you may not have any idea who designed her dress off the top of your head. But if you got a peek at the red sole on her shoe, you knew who designed those.

Probably more importantly, the red sole signified authenticity and added cachet in a way that few things can. People may be more willing to shell out $1,000 for a pair of shoes if they know that everyone else will realize what they're worth.

I haven't followed this and I had no idea Louboutin was suing YSL. The red sole was brilliant, but I'm surprised the company thought it was something they could protect. I can see why they'd want to protect it, but I can't imagine they actually believed they could.

And, yes bring on the different. Yellow soles, blue soles, black and white striped soles! It's an entire dimension of the shoe that no designer paid much attention to until Louboutin. It is delightful!; 10/15/11, 5:00 PM
Rachel said...: Bill Cunningham is delightful.; 10/15/11, 5:16 PM
Maggie Goff said...: The documentary "Bill Cunningham New York" is streaming on Netflix. I just watched it and admire Bill even more than I did before.; 10/15/11, 5:41 PM
yashu said...: It's also rentable on itunes & Amazon.; 10/15/11, 6:11 PM
Almost Ali said...: The documentary "Bill Cunningham New York" is streaming on Netflix.

What, Netflix is still around?; 10/15/11, 6:46 PM
ken in tx said...: I thought this had already been litigated and decided that colors could not be trademarked. The case I thought related to the blue, pink, and yellow envelopes of artificial sweeteners.; 10/15/11, 8:15 PM
bagoh20 said...: "We see yellow and blue soled shoes. "

How incredibly innovative and creative. Pure genius. What kind of a mind would conceive of such a thing. It's otherworldly. I'm blown away by it. Fashion - change colors - freakin most original idea ever. It's like mixing chocolate and nuts, just crazy stuff. NASA should be grabbing those people up.; 10/15/11, 11:09 PM