This is our blog, where we post stories, insights, and (hopefully) interesting content for everyone to enjoy. Alec is the primary author of all of these posts, he posts about every three weeks. If you have any questions about anything you read, please don’t hesitate to contact us for more information.
The Fine Line Between Fashion and Cultural Appropriation
July 13, 2019 — Auz Burger
There has been a debate for years about whether different fashion items are cultural appropriation or appreciation, with some countries or cultures actually suing fashion designers over what they see as their intellectual property.
The basic idea behind cultural appropriation is that a group, nationality, or ethnicity developed a practice and only people in that group are allowed to practice it. Anyone who is outside of that group cannot engage in the practice. If then a dominant culture adopts elements of this practice from this marginalized culture, especially if it is used outside of the original cultural context, it is considered cultural appropriation. This is often done without crediting the culture that inspired the work and sometimes it is even done against the culture’s wishes.
Claims of cultural appropriation are often linked to fashion week, because of how many new styles are debuted during that time. Outside of fashion week, these claims can be frequently found as viral posts on social media. Some say these are inspired by the cultures or are done in appreciation of the culture, but since social media has become the judge on the matter, the term is often misused and can end up harming a business.
The Problem with Finding a Legal Standpoint
One of the problems with finding a legal standpoint with cultural appropriation is that it is essentially focusing on the rights of a group, and saying that this group owns this practice, even if members of the group did not actually participate in the development of this practice. For example, claiming that because people in India developed Yoga means that only people from India can practice it and the country has a special claim to it, even though it was developed by a small group of people who were from that country.
Another issue is the claim that if a person develops a practice, they have exclusive rights to practice it, which does not necessarily work. An example of this is if a specific hairstyle is seen mostly in one culture, does that mean that nobody else can ever style their hair that way, because doing so is cultural appropriation?
The World Intellectual Property Organization (WIPO) currently excludes the majority of traditional cultural expressions from its protections; these include any motifs, patterns, or other designs that an Indigenous or traditional culture created. These designs do not fall under to protection of copyright laws for the most part, because the designs are passed down through generations, so they do not have enough evidence to prove the designs are the original work of their culture.
“Copying traditional design motifs without consent can erode a community’s identity and cause profound harm,” says Brigitte Vezina, author of a study on the matter. “From a copyright standpoint, traditional cultural expressions are considered to be in the public domain and that makes them freely available for anyone to use.”
Since copyrighting these expressions would make them public domain now, there is only one avenue left that may protect them legally: intellectual property laws.
Is There a Legal Standpoint?
Earlier this year, a global think tank in Waterloo called for stricter intellectual property laws to “protect Indigenous arts and traditions from cultural appropriation in the fashion industry.”
There have been several cases in the United States in recent years where cultures fought corporations adopting their traditions into fashion.
In 2013 Nike had to pull a fashion line that resembled traditional Samoan tattoos after receiving severe backlash.
The Navajo Nation fought Urban Outfitters in 2016 after the fashion brand used the tribe’s name for a clothing collection. The tribe owned near one hundred trademarks to protect their cultural heritage, and they ended up making an agreement with the clothing line to make authentic Navajo clothing together. Urban Outfitters did not just violate the tribe’s trademarks in this case, they also violated the Indian Arts and Crafts Act, that makes it illegal to sell art or crafts while fraudulently claiming they were made by Native Americans.
Carolina Herrera, a fashion brand based in New York, had a complaint lodged against it for cultural appropriation by the Mexican government, for using its indigenous patterns in its Resort 2020 fashion line. One of the issues, in this case, is that copyright law in Mexico states that “the use of those works shall be free, provided they are not deformed, intended to discredit the works, or prejudice the reputation or image of the community,” as Managing IP pointed out. This case is still ongoing.
Overall, while there does seem to be some basis for legal standing within the intellectual property laws to protect these traditional designs in fashion, there is not currently enough protection available to cover everything a culture may wish to protect.
Legal Issues with Crowdfunding for Small Businesses
June 13, 2019 — Auz Burger
Crowdfunding sites like Kickstarter have become a popular way for small businesses and products running quickly. The basic idea with these crowdfunding sites is the business owner begins a campaign where they set a specific amount of time they want it to run, usually a campaign lasts about 30 days. They set a goal amount of money, which if they get there, the campaign is considered successful.
These campaigns are rewards based, so the owner offers some sort of product as a reward for those who pledge the project; usually, there are different pledge levels, so someone can get multiple things, or different things depending on what they choose to pledge. Once the campaign is successful and the funds have cleared for the owner, they can begin production on the promised products, and eventually, the finished product is sent out to the backers.
This is great if you already have a small business and an idea for an innovative new product, but you do not have the revenue to produce the product yet. If after the completion of your crowdfunding campaign you realize that it does not work the way you wanted it to or there is some other issue with the product, you have not wasted precious resources from your business to try this product out.
While this sounds like a wonderful way to boost your small business or get it off the ground, there are some legal issues that can come up in the process that you should be aware of.
Intellectual Property is business assets that have value, but no substance. This is most commonly copyrights, trademarks, and patents. There are two types of intellectual property issues that tend to come up in crowdfunding campaigns
The first is the campaign creator putting up a photo or video and there is a patent or copyright on that photo or video. The person who owns the patent or copyright can then sure the creator for copyright infringement. This is simple enough to avoid; if you do not have the copyright or permission to use it, do not put it up on your campaign site.
The second is ideas from campaigns being stolen, then knockoffs are made. Putting your idea on a public crowdfunding site can risk it being stolen or copied, and the crowdfunding sites have in their terms and conditions that they are not liable for anything like that happening.
Using a crowdfunding campaign to raise funds for your business forms contracts between you and your backers. The terms of the contract between the creator and the backers are often vague though, leaving things open to interpretation.
To help with this contract, you need to be careful of your wording in describing the campaign rewards and ensure that you can reasonably fulfill the rewards. The way you word the project is really what matters here, you have to be careful about what exactly you describe you will be delivering. If something goes wrong in the production of the project, questions will come up about what exactly was promised and if those promises were met, which is why it is so important to be crystal clear what exactly you will be delivering.
Failing to deliver the product at all can lead to a lawsuit, and for the most part, the crowdfunding platforms will not get involved in the suit. Delivering a sub-par product can also lead to a breach of contract lawsuit, whether the backers file them individually or as a larger class action suit.
Taking the time to fully read the terms and conditions before beginning your campaign can also help you avoid a lawsuit since you will know what you may be legally liable for before launching your campaign. On most crowdfunding sites, the terms say something about refunding the money you raised if you are unable to deliver, which tends to be problematic because, by that point, the funds have been spent on production.
Fraud and Consumer Protection Claims
If you overpromise what you plan to deliver to your backers and end up unable to deliver, this can lead to more than just a breach of contract. You can find yourself the subject of a fraud lawsuit or be found guilty of violating consumer protection or false advertising laws. This is all based on the belief that you misstated what you would deliver when you accepted your backers’ money. This is another reason why it is so important that you word things clearly and carefully when presenting your project.
It is not just your backers that can file claims against you either, the Federal Trade Commission (FTC) has been known to take action against crowdfunding creators who they believe to be in violation of these laws. The FTC began taking a larger role in monitoring fraudulent campaigns a few years ago, cracking down on creators who lied and did not deliver. The FTC is in charge of stepping in when a charity lies to its donors, so crowdfunding campaigns fall under their jurisdiction too.
Some backers on crowdfunding sites tend to cry “fraud” if the slightest thing seems to go wrong, like the project not being finished on time, but it is important to keep in mind that when you are backing a crowdfunding campaign, you are not buying something from Amazon that has a guaranteed delivery date and can easily be returned or exchanged. Backing a campaign means they are putting their faith in you, the creator, to create the product you have displayed, and to communicate any issues that arise along the way.
A crowdfunding campaign can be a major boon for a small business, but it is important to keep in mind the legal challenges you could end up facing if things go wrong. One of the biggest issues that backers complain about is not that the rewards are late, but that the creator did not communicate the problem. Many backers are fine with their rewards coming late as long as they know why.
Only nine percent of projects on Kickstarter fail to deliver any rewards. Sometimes things happen that you cannot predict. Communicating with your backers and being careful of exactly what you promise will help you to avoid legal troubles with your backers.
What Does a Commercial Real Estate Lawyer Do?
May 1, 2019 — Auz Burger
Commercial real estate laws are what regulate the sales of business properties. It also handles other things like zoning issues, commercial leases, liquor licensing, and property or land use. So, a commercial real estate lawyer is someone who specializes in those laws in an area.
A lawyer in this field oversees your purchasing or leasing agreements, closing information, mortgage information, and even zoning ordinances. They are with you from start to finish in the real estate process, guiding you through a complicated legal field.
Commercial real estate lawyers may handle contract negotiations, various types of commercial leases, and representing clients in court. A large aspect of commercial real estate law is commercial banking, so a commercial real estate lawyer may also handle things like securing a loan for your business and obtaining a line of credit for your business.
Buying commercial property is not a quick, straightforward thing. There are a lot of problems and challenges that can arise including leaseholds, corporate ownership, and environmental issues. None of these things are easy to resolve, so hiring a real estate lawyer, in the beginning, can make things less of a headache for you, because they’re trained to navigate these fields and deal with any other issues that arise during your real estate purchase.
Even the simplest negotiations can be stressful and emotionally taxing but getting emotional during a negotiation isn’t a good thing. Having your commercial real estate lawyer with you means you have someone who isn’t emotionally attached to your business and can navigate the negotiations without emotions getting in the way; this will help you get the best possible resolution to your negotiations.
A commercial real estate lawyer is trained to help you spend time vetting the property you’re interested in buying or leasing, so they can help make sure the property is exactly what you want before you move forward with the deal. Their trained eyes can pick up on little things you may overlook because this isn’t your field of expertise.
Buying or leasing commercial real estate is much different from buying or renting a house. The lease for a commercial property tends to run for longer while buying the property can come with its own risks and challenges that you may need a lawyer for. Your lawyer is there to help protect your finances and get you the best deal out of your purchase or lease.
The laws for commercial real estate are usually pretty complex, and they tend to vary from area to area. They can even vary in the same city in some cases. If you’re seeking to purchase or lease commercial real estate, calling a lawyer beforehand can make everything go much smoother for you, and you’ll have access to someone who can answer your questions quickly.
Imagine being ready to begin construction on this parcel of land you’ve purchased for your business, but just before you break ground you learn there’s a zoning law that’s standing in the way of your construction. Hiring a commercial real estate lawyer, in the beginning, means they’ll be aware of that zoning law and will help you find a different plot of land or an alternative to work with the zoning laws.
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