How Fashion and Fast Food Create a Perfect Learning Combo: A Class Exercise in Ethics, Freedom of Speech, and Intellectual Property
2023; Wiley; Volume: 40; Issue: 2 Linguagem: Inglês
10.1111/jlse.12137
ISSN1744-1722
Autores Tópico(s)Fashion and Cultural Textiles
ResumoA brief examination of the fashion world reveals a multitude of learning opportunities for the business law curriculum. Fashion Law, a niche legal practice that addresses the broad range of business law concerns facing the fashion industry, has only recently gained a more respected position within legal research, debate, and discourse. In 2010, Fordham University became the site for the launch of the Fashion Law Institute,1 which offers two master's degrees in fashion law, dozens of public programs, an LL.M, and the Fashion Law Pop-Up Clinic.2 The Fashion Law Institute is regarded as the epicenter of the still-growing fashion law movement3 that includes the Harvard Fashion Law Lab and the New York Law School Fashion Law Initiative.4 Fashion has been present in society for years;5 however, our perspective on fashion has changed.6 Technology has opened a global marketplace and allows consumers more avenues in which to admire and purchase items.7 Additionally, an increased interest and hyper-focus on celebrities and their fashion, as well as private lives, help to catapult the amount of advertisements for brands and styles.8 Finally, in the past decade, an increasing list of new designers has caused the industry as a whole to grow.9 The growth of fashion law practices,10 fashion law scholarship,11 and newsworthy fashion law events supports the argument that the fashion law industry is an interesting and relevant context for teaching legal studies topics. As noted by a stalwart in the Fashion Law field, “Corporate finance, employment law, supply chain regulation, sustainability, taxes and tariffs, advertising, consumer protection, and dress codes and civil rights—these and other legal issues are all integral parts of fashion law. . . . ”12 Therefore, the topic is suited for a case study that can address numerous topics covered in the business law course. This article provides a class exercise based on the 2014 Fall Moschino “McDonald's” collection that combined fashion and fast food in a way that arguably evoked humor, shock, wonderment, and controversy. The Moschino collection presents legal and ethical considerations such as free speech, marginalization, intellectual property rights, and business ethics. The eighty-minute exercise is designed to prepare students for a variety of legal issues they will confront as business professionals. It can be introduced within an instructor's established business law curriculum to supplement the topics of intellectual property, free speech, and business ethics. Given the range of substantive law topics, there is flexibility to either assign the activity at the end of the course or introduce the factual background at the beginning of the course and reference it throughout the semester as the topics are introduced. Part II of this article provides the factual background of the controversial 2014 Moschino collection. Part III analyzes the legal and ethical issues and describes the class activity. The article concludes in Part IV. The purpose of this exercise is to demonstrate how a particular industry, in this case fashion, can encompass many facets of business law, including ethics, intellectual property, and freedom of speech considerations. It encourages students to be cognizant of the diversity of legal issues that can arise in any industry and provides students practice recognizing those issues. The class exercise is based on actions by the Moschino fashion house that raise legal and ethical questions that were never resolved in a lawsuit. This example will allow students to contemplate how business decisions can play out in the public eye, while also deciding for themselves (without having the hindsight of a formalized court opinion) whether legal violations occurred. As is true of every season in the fashion industry, each fashion house tries to present the most unique, creative, and memorable clothing to convince the industry and consumers of their relevance.13 Franco Moschino, founder of the Moschino fashion house in Italy,14 started his own label in the early 1980s.15 Originally aspiring to be a painter, he used his passion for prints and color in the world of fashion design.16 For a time, Moschino collaborated with Italian fashion house Versace as an illustrator.17 Not long thereafter, he became known for interpreting classic styles of other fashion houses, giving them a twist by adding “confidence” and “boldness” to the designs.18 He started to make a name for himself as a “self-styled court jester.”19 Models would wear clothing with various fabrics affixed representing a play on words.20 Examples of such phrases are: “Fashion is Full of Chic,” “Ready to Where?,” and “Bull Chic,” all of which were meant to mock classic fashion.21 Journalists and buyers loved to attend Moschino's shows for the unexpected display that permeated his events.22 Franco Moschino has stated, “I copy and desecrate other designers, recount what happens by trying to understand the motivations of people.”23 His words explain his use of fashion as a commentary that society is cynical and dry.24 An example of the thread of controversy associated with the label is the spring/summer 2017 collection that was inspired by pills and prescription drugs.25 It immediately drew criticism for making drug use appear fashionable and desirable.26 The collection, which was designed by the infamous Jeremy Scott, featured massive orange drug-bottle bags, silver bags resembling giant blister packs, iPhone cases shaped like pill bottles, T-shirts proclaiming “Just say MoschiNO,” and an orange drug-bottle minidress ($995) emblazoned with the words “WARNING! Do not take medication on an empty stomach.”27 To further the provocative message, the invitation to the fashion show was a pill bottle filled with candy and a handwritten “prescription.”28 In response to the outcry, the company put out a statement: “The Moschino capsule collection was inspired by a play on the word ‘capsule’ translated literally as a collection of ‘capsule-themed’ products. There was never any intent to promote prescription drug abuse. We are disheartened to hear that there has been a misunderstanding of the underlying theme of the collection.”29 Figure 1. Woman walking down a fashion runway wearing a black sweater dress with pictures of pills covering the garment. Photograph: Estrop / Getty Images. A more recent example occurred during the Trump presidency. Moschino attempted to take a cheeky stance on Trump's immigration policies.30 One of its 2018 campaigns featured models Gigi Hadid and Kaia Gerber covered in green and blue paint with the caption, “The only illegal thing about this alien is how good she looks,” a reference to President Trump, who often used the word “alien” to refer to undocumented immigrants.31 Many consumers called the ads “insensitive and tone deaf,” once again forcing the company to explain itself.32 The entire concept of my ad campaign was to bring attention to the US administration's harsh stance towards “illegal aliens.” I painted the models in my show and this campaign as a way to bring attention to this and discuss what exactly is an “alien” are they orange blue yellow green? No they are our friends, neighbors, co workers, relatives and people we love.33 Figure 2. Woman walking down a fashion runway wearing pink suit and body covered in green paint. Photograph: Rex Features Moschino is not the only fashion house that has raised eyebrows in the past for controversial actions. Balenciaga faced scrutiny in late 2022 for referencing child pornography and featuring child models alongside fetish imagery.34 Some say this would not have even made headlines if Kim Kardashian was not also the brand ambassador for Balenciaga.35 Figure 3. Twitter post showing photos of toddler-aged children carrying teddy bears that appear to be wearing S&M fetish garments. Photograph: Balenciaga In 2016, Marc Jacobs had his models walk the runway in faux dreadlocks for his Spring collection. Many argued it was a blatant example of cultural appropriation. The designer's response added to the uproar. He wrote on Instagram: “I respect and am inspired by people and how they look. I don't see color or race—I see people.”36 Figure 4. Woman walking down a fashion runway wearing silver clothing and hair arranged in dreadlocks. Photograph: Antonio de Moraes Barros Filho / FilmMagic You'd think it would have a little more fun. To me, that's the point of it. Ultimately, we need no more clothes. We could function with everything that's on the earth right now. So you have to have this reason to want things. To me, it's to make you happy, and to me, that's linked to humor.44 Critics commented on the design, but others mused as to the ethical considerations of mocking low-paid workers and freedom of speech issues, as well as intellectual property violations.45 Fashion and Fast Food is an exercise that allows students to apply multiple substantive law areas in one focused class exercise and to help demonstrate how classroom concepts interrelate in business. In this section, I will highlight the learning objectives for this exercise, as well as the overall activity structure, including in-depth discussion questions and teaching points for consideration. Understand and recognize how ethical considerations impact product design and marketing, as well as stakeholder interests. Explain and understand the difference between trademark dilution and trademark infringement. Identify how the Lanham Act influences intellectual property considerations. Explain the fair use exception under intellectual property violations, with a focus on the concept of parody. Explain commercial speech and the way in which businesses have limited legal rights under free speech doctrines. Through the course of reading and analyzing various federal laws and cases, students become more comfortable with processing and reading such materials, which allows them to build upon that understanding in analyzing future legal materials. This exercise is a practical way in which to incorporate numerous legal concepts into one discrete activity. This section provides some recommendations for how to structure this activity, including pre-class preparation and in-class discussion. It also suggests specific questions instructors might use to guide discussion in three areas: ethics, intellectual property, and freedom of speech. Based on the substantive law areas covered, this exercise is recommended to be completed toward the later part of a semester/quarter of a business law survey course. Students should be familiar with ethics, intellectual property, and free speech. Instructors may also distribute this exercise46 during the first week of class and provide for a brief review. After students review the exercise, instructors can inform students that the class exercise is an example of how many legal concepts they will be learning, often working together. Additionally, instructors can explain how these concepts may seem intimidating and foreign to them, but throughout the course of the class, they will slowly address and confront these topics, thus being empowered to handle this seemingly complex class exercise. As the class term progresses, and the instructor has covered substantive law topics on intellectual property, ethics, and free speech, they can determine at which point they can insert this class exercise. Once the day has been chosen, the author recommends providing students with at least one week's notice to assign all pertinent readings to prepare for the in-class discussion of this exercise. To effectively complete this exercise in an eighty-minute class, students should complete the reading assignments prior to class. During the first ten minutes of the class, the instructor can have an open forum that allows for clarification questions relating to the reading. After vetting any questions pertaining to these substantive law areas, instructors should divide students into small groups where they will compare and contrast answers for the questions posed in the assigned class reading. As students have been exposed for a week to those questions as part of the reading, they should have begun to formulate answers for a group discussion. Instructors can inform the groups that their goal is to compare and contrast each other's answers to see if they can come to a consensus, using assigned readings and previous class lectures to support their responses. These group discussions should last no more than thirty-five minutes. For the final twenty-five minutes of the class session, instructors should debrief students as one large group, with the instructor guiding the discussion. Here, instructors may note that, just like in a court case, parties may have differing ideas as to how a particular law or case should be interpreted and understood. Instructors could carry this exercise over into a second day of class, allowing students a more robust period to discuss as small groups, and on the second day provide for a large group debrief. As part of students’ pre-assigned reading, instructors may provide directed questions in the areas of business ethics, intellectual property, and free speech. Sample questions are included in the Appendix. These questions will be re-visited and considered during the class exercise conducted in the classroom. There are three main areas of focus for purposes of the exercise. First, students examine the ethics of the Fall 2014 collection given the Moschino brand philosophy. Second, students will consider whether a trademark violation occurred based on Moschino's alleged use of the McDonald's logo and whether the fair use doctrine, namely, parody, would serve as a defense. Third, students will critically analyze how clothing can be considered commercial speech and the parameters potentially placed upon it. The following provides some background of each area of substantive law for instructors, as well as the questions provided to the student, and potential discussion points and responses to each question that instructors can use as guidance during the class exercise. In many undergraduate business law courses, some portion is devoted to business ethics. Further, many undergraduate business schools require an ethics course.47 Noting the potential ethical considerations in this case helps round out the other legal components and demonstrates the balance between ethical and legal considerations in the business world. As the concept applies to this case study, instructors may note that well-paid, beautiful women are walking down a fashion runway wearing a high-end designer's clothes, with a picture, or arguably a caricature, of the McDonald's logo on their clothing. Further, some of the pieces of clothing look similar to the McDonald's workers’ service uniforms. Some might argue that McDonald's ongoing media portrayal as a low-wage company48 is back-handedly referenced by the caricature of the McDonald's logo in Moschino's Fall 2014 line. Perhaps for those who have to wear the McDonald's uniform and earn the low wages that go along with it, seeing others in a socio-economic category well above theirs donning the same logo in an almost caricature format may appear demeaning and embarrassing. One McDonald's worker stated: “One knowing how it is to work at McDonald's knows there is nothing fashionable about it. Knowing someone will pay $1000 for clothing inspired by McDonald's workers who earn minimum wage is a mockery.”49 This underlying tension serves as fodder for an ethical discussion applying some of the more common business ethical theories. Another, less commonly discussed ethical consideration in the world of business is socio-economic appropriation. Discussions as to misappropriation usually center on cultural misappropriation and its harmful effects, particularly as highlighted through the lens of artists, influencers, and actors.50 However, instructors may facilitate a discussion on the ethicality of socio-economic misappropriation. This issue is commonly seen in the fashion world. Fashion houses regularly look to various groups in society for inspiration. High fashion is constantly struggling with the persona that it is an exclusive world for only the most affluent of individuals.51 Previously, high fashion has borrowed heavily from working-class uniforms.52 For example, the infamous Chanel little black dress started as a working-class uniform.53 In the late nineteenth century, the dress became a uniform for the new urban class of domestic workers and shopgirls.54 A few decades after the association between the black dress and working women was established, Chanel's little black dress was seen as both “prim and subversive.”55 Chanel's high-end customers threw off their corsets and “dressed up as their maids!”56 For this exercise and the focus on business ethics, a discussion as to whether Moschino, through its Fall 2014 line, misappropriated through a socio-economic lens may be relevant. For purposes of this portion of the case study, students will focus on business ethical theories such as stakeholder theory and shareholder theory. Of course, faculty may choose to expand the theories utilized depending on the time allocated for this activity. Question 1: Under the stakeholder theory, would McDonald's employees be considered stakeholders? Why or why not? Question 2: Some critics of the stakeholder theory have said that the “essential principle of stakeholder theory that corporations are accountable to all their stakeholders [is] unworkable.”57 After applying the stakeholder theory to the Moschino scenario, do you agree? Question 3: The shareholder theory of business ethics details that either managers and/or corporations have an ethical duty to promote the interests of shareholders, possibly to the exclusion of other people's interests.58 Given Moschino's Fall 2014 collection and the media fallout, do you believe the result aligns with the goals of shareholder theory? Question 4: After reviewing Moschino's mission statement, do Moschino's actions align with that statement? How does that alignment, or lack thereof, relate to the ethical discussion of the company's actions? For this prompt, instructors may encourage students to consider why a company has a mission statement. What is its purpose? What is the goal of having such a statement? What if a company did not have such a statement? Turning from that foundational discussion, instructors can then ask students to recall Moschino's mission statement from the assigned readings. Students can then be prompted to apply their prior answers to Moschino's statement and whether its Fall 2014 collection aligns with that statement and purpose. Students may notice potential intellectual property violations, specifically trademark. In the discussion of intellectual property in this case, instructors should narrow the focus. In particular, instructors should direct students’ attention to the definitions of trademark, infringement and dilution, the fair use exception, and the concept of parody. Other nuanced discussions of trademark and intellectual property laws could apply to this case study, but for purposes of time and in an undergraduate business law course, instructors should narrow the focus. Trademark Infringement and Dilution. The purpose of trademark law is to prevent commercial fraud and ultimately protect the public,59 while also protecting the trademark owner.60 Using a trademark allows the public to identify the source of a good.61 Therefore, trademarks protect consumers from fraud and confusion so that they can rely on a certain quality from a particular product.62 Trademarks consist of words or symbols that identify and distinguish goods for the benefit of consumers.63 The Lanham Act, the federal statute covering trademark infringement, broadly defines a trademark to include “any word, name, symbol, or device, or any combination thereof” so long as it is used in commerce for the purpose of distinguishing the source of the goods.64 Taking a closer look, trademark infringement is “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”65 In assessing whether there is a trademark infringement, and in particular a likelihood of confusion, courts generally apply the Lapp test, considering the following factors: (1) similarity of the marks; (2) strength of plaintiff's mark; (3) sophistication of consumers when making a purchase; (4) intent of the defendant in adopting the mark; (5) evidence of actual confusion (or lack thereof); (6) similarity of marketing and advertising channels; (7) extent to which the targets of the parties’ sales efforts are the same; (8) product similarity and identity/function/use; and (9) other factors suggesting that consumers might expect the prior owner to manufacture both products, expect the prior owner to manufacture a product in defendant's market, or expect the prior owner is likely to expand into defendant's market.66 However, not all factors will be relevant in every case, and different factors may be accorded different weights depending on the circumstances of each particular case.67 No single factor is dispositive, and a finding of a likelihood of confusion does not require a positive finding on a majority of the factors listed. The Lapp factors are intended as a guide; courts are free to consider any other relevant factors in determining whether a likelihood of confusion exists. Any person who, on or in connection with any goods or services . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin . . . which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association . . . or as to the origin, sponsorship, or approval of his or her goods, services or commercial activities by another person . . . .69 The Act does not delineate when this confusion needs to occur as it relates to the sale of the item in commerce.70 Trademark dilution, on the other hand, is a bit different. With dilution, the courts look to the Federal Trademark Dilution Act (FTDA), which provides relief if another's commercial use of a mark or trade name “causes dilution of the [mark's] distinctive quality.”71 An interesting case to underscore this concept is Moseley v. Victoria's Secret Catalogue, Inc. Victor and Cathy Mosley owned a retail store named “Victor's Secret” that sold lingerie, adult novelties, and adult videos.72 Victoria's Secret asked Victor's Secret to discontinue using the name, but the Mosleys responded by changing the store's name to “Victor's Little Secret.”73 Victoria's Secret then filed suit, alleging “the dilution of famous marks” under the FTDA.74 The FTDA describes the factors that determine whether a mark is “distinctive and famous” and defines dilution as “the lessening of the capacity of a famous mark to identify and distinguish goods or services.”75 The court found no evidence of lessening of the Victoria's Secret trademark's capacity to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs.76 The court noted that a showing of actual dilution must exist, not a “mere mental association” between the junior mark with the famous mark.77 Legally, a trademark identifies the source of goods and services and differentiates them from others in the marketplace.78 The Golden Arches has come to identify McDonald's as the source of its meals and restaurants.79 “The legal concept of ‘dilution’ protects the owner of a famous trademark from the decrease in strength and value of this mark by preventing the coexistence of similar marks.”80 Under laws in the United States, the owner of a famous mark that is distinctive (in this case McDonald's) has recourse against a company or person (Moschino) for using a mark in a commercial context that is likely to cause dilution by blurring or by tarnishment of the famous mark.81 This is true regardless of whether any confusion, competition, or actual economic harm occurs.82 In the Fall 2014 Moschino collection, seven of the ten pieces in the collection incorporated the heart-shaped motif that appeared to reference McDonald's logo.83 Defenses to trademark infringement. Even in an undergraduate business law course, most students are confronted with defenses to trademark infringement, albeit on a cursory basis. Therefore, it is important to briefly include a discussion of potential defenses that could be applied in this scenario. The one that usually stands out to students is that of parody. Parody or satire occurs when an artist, for comedic effect or even social commentary, closely imitates the style of another artist and then creates a new work of art that makes ridiculous the style and expression of the original.84 Webster defines parody as “a writing in which the language and style of an author or work is closely imitated for comic effect or in ridicule . . . .”85 A case to use in support of a parody discussion is Nike, Inc. v. “Just Did It” Enterprises,86 in which a clothing company allegedly used a trademark from another company87 and then claimed it was entitled to the fair use defense of parody.88 If the defendant employs a successful parody, the customer would not be confused, but amused.89 Thus, customer confusion need not be restricted to a mistake regarding the source of the goods; the court should also consider whether the customer would believe that the trademark owner sponsored, endorsed, or was otherwise affiliated with the product.90 To further this discussion, students may read Tommy Hilfiger Licensing v. Nature Labs, LLC.91 Tommy Hilfiger is an American fashion brand known for its red, white, and blue coloring and flag emblem.92 Here, Nature Labs developed a line of perfume for pets.93 Nature Labs’ initial spoof of Hilfiger was called “Tommy Holedigger” and had a label shaped like a flag with side-by-side red and white squares bordered on top and bottom by a blue stripe with white letters.94 Hilfiger complained that this use infringed on its marks.95 In response, Nature Labs changed the product name to “Timmy Holedigger” and modified the label to its present form: inverted side-by-side yellow and red triangles bordered on top and bottom by a blue stripe with white letters.96 Beneath the new logo design, the following phrase appears: “If You Like Tommy Hilfiger Your Pet Will Love Timmy Holedigger.”97 Hilfiger, and perhaps some others, would do well to read McCarthy on the subject: “No one likes to be the butt of joke, not even a trademark. But the requirement of trademark law is that a likely confusion of source, sponsorship, or affiliation must be proven, which is not the same thing as a ‘right' not to be made fun of.”105 Both of the above cases provide a strong discussion of parody to apply to the Fall 2014 Moschino case. Question 1: Is the alleged McDonald's logo used on the Fall 2014 Moschino collection a potential violation of trademark dilution? Why or why not? Question 2: Is the alleged McDonald's logo used on the Fall 2014 Moschino collection a potential violation of trademark infringement? Why or why not? Question 3: Could the affirmative defense of parody be used here? Why or why not? [T]he keystone of parody is imitation. It is hard to imagine, for example, a successful parody of Time magazine that did not reproduce Time's trademarked red border. A parody must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the customer will be confused.111 Instructors can remind students that customer confusion need not be restricted to a mistake regarding the source of the goods; the court also considered whether the customer “would believe that the trademark owner sponsored, endorsed, or was otherwise affiliated with the product.”112 Turning to the Moschino collection, instructors may ask students if a reasonable member of the public would assume that McDonald's sponsored or was affiliated with the product. Many students may say “yes” because they are familiar with “collabs” (collaborations) between celebrities and products. Students might note that it appears McDonald's may have wanted to appear more relevant to a younger generation by collaborating with a brand (Moschino) that is known to push boundaries. To wrap up a discussion of trademark law, instructors may want to inform students that ultimately McDonald's did not pursue a trademark infringement or dilution case against Moschino. Pursuing a lawsuit for intellectual property violations is a strategic decision. In McDonald's case, perhaps management anticipated public criticism for publicly complaining against Moschino. In fact, one could argue McDonald's may have garnered more favor with the public by not litigating and perhaps enjoyed the “free” publicity. Finally, instructors can tie this topic in with the business ethics topic and note that McDonald's may have wanted to bring a trademark dilution or infringement lawsuit against Moschino if it was worried about how its brand was potentially perceived through an ethical lens. In other words, to protect its employees and perceived comedic references to low-wage workers, McDonald's could claim it did not want its brand associated with such connotations. Students are generally familiar with the concept of free speech and have a cursory knowledge of its protections. However, when students apply free speech to businesses, they may be less familiar with the concept. This case exercise allows students to an
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