Thinking Like a Lawyer - Above the Law

The Fashion Police

Elie and Joe talk about Apple, Samsung, knock offs, child labor, Melania Trump, and open toed shoes… in that order… with Fashionista editor Tyler McCall.

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Above the Law – Thinking Like a Lawyer

The Fashion Police

01/19/2017

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. With me is Elie Mystal.

Elie Mystal: This is the worst country in the world.

Joe Patrice: Somalia begs to differ, but I hear you. So we are back, it’s a new year, we handed out all of our awards on our last show and now we can begin boldly another year in the life of the law. Exciting.

Elie Mystal: It might be the last year.

Joe Patrice: I mean, okay. So anyway, are we ready to go, or are you going to complain about something that you haven’t just incessantly bitched about for a long time and even though you have no capacity to do anything about it?

Elie Mystal: I mean, you understand how I am stuck, right, like I kind of — the only thing worth complaining about is the only thing that anybody ever complains about anymore, because it’s the only thing that’s happening.

Joe Patrice: Yeah, the weather.

Elie Mystal: The pick play on the goal line for Clemson. No, the version of the complaint that I want to lodge today, I guess is the only way of saying it, is particularly with who I would describe as candy-ass liberals, who keep watching Donald Trump do bad things and kind of wait for the Constitution or the law to show up and save them, like freaking Superman is going to drop in and save the day. That’s not how it’s going to happen.

I am so sick of reading a news story and having some effing liberal tell me, is that constitutional? Of course it is. Of course it is. The Constitution is a short flawed slaveholding document. Of course it can be weaponized against us if it’s put in the wrong hands, and it’s being put in the wrong hands of Donald Trump and Mitch McConnell and Paul Ryan.

So yesterday, when we were recording this yesterday, the big thing was the Emoluments Clause, where Donald Trump is clearly going to get improper benefits while being President. That’s absolutely going to happen. And people are like, oh, well, that’s not constitutional. Of course it is. Of course it is.

Actually read the freaking Emoluments Clause, Article 1, Section 9, read it. What does it say? It says basically Trump cannot be declared King of all England. Okay. But it doesn’t really say anything about who can stay in his hotel or what foreign governments can funnel money through his fake charities, it doesn’t say anything about that. The Constitution is not coming to save us.

Joe Patrice: So anywho, I think it does say a lot more about that. I think the question, which actually is a very interesting question, is whether or not the Emoluments Clause, which I think it does suggest that you can’t get bribes, whether or not profits that people do through your business, like to the extent that you end up with that money, is that kind of a form of bride, and I think that’s an interesting interpretive question, but I also —

Elie Mystal: Trump in his press conference basically said, hey, everybody, look at me, I was offered a $2 billion bribe and I didn’t take it.

Joe Patrice: That was interesting to just kind of volunteer when no one was asking for it. But yeah, I think that’s the interpretive question that could be interesting. I don’t know as though it’s — like a lot of political things, I think that the political doctrine will keep anyone from ever actually litigating that issue, but that’s the interesting angle on it.

Anyway, so with that done, mercifully —

Elie Mystal: That’s our biweekly look into the horribleness of my life. Anyway.

Joe Patrice: Yeah. So anyway, so let’s begin what we are actually talking about today, which is ironically how the law can come in and save people from doing things, and in this case how it can do that in kind of the intellectual property sphere; we don’t talk about that enough.

And we also, when we do, tend to talk about it very legally, because it is Thinking Like a Lawyer, but we thought it would be interesting to look at some of these issues with somebody who looks at it from the more practical perspective of how intellectual property works.

Elie Mystal: We are going to call her field practical now, that’s interesting.

Joe Patrice: Sort of. I mean, yeah, like — well, actually, utile I guess we will use, because that’s going to become interesting, that’s going to become a factor in what we talk about.

So we have Tyler McCall here from Fashionista. I don’t know your present title.

Elie Mystal: Deputy Editor.

Tyler McCall: Deputy Editor.

Joe Patrice: Deputy Editor, yeah. We have had all kinds of title changes around here. I am now a plenipotentiary. Yeah, so welcome to the show. We are going to talk about fashion indirectly and a lot of stuff about intellectual property.

Elie Mystal: How are you?

Tyler McCall: I am not as mad as you, but all right. How are you?

(00:04:51)

Elie Mystal: How do I look today, because often, as regular listeners know, we start with some comments about whether or not I am dressed for the podcast, because we like to make the point that, unlike most of our listeners, I am not required to look professional to do my job, but I tried for you today, so what would your assessment of my professional attire be, notice the pants?

Tyler McCall: You are wearing pants today, which is a huge relief.

Elie Mystal: Boom. Boom.

Tyler McCall: You are also wearing that orange waffle-knit, is it a sweater or is it a shirt that you are wearing, that I have seen you wear I think every time I have seen you.

Joe Patrice: It’s technically a sweater, I guess.

Elie Mystal: It’s my sweater.

Tyler McCall: It’s got minimal stains. Everything is relative.

Elie Mystal: It’s my sweater; I have had this since I want to say like 2011.

Tyler McCall: Would never have guessed that it had only been, what, six years.

Elie Mystal: Yeah, that’s about right.

Tyler McCall: Yeah, it looks like it has been through the wringer a little bit, but it’s a good color for you.

Elie Mystal: I am a big fan of orange, that’s a big net color. What about my protest pic; this is something that I have been doing over the objection of pretty much everybody in my family, I have grown my frill out a bit and I have started wearing my protest pic.

Tyler McCall: I like it. I am for it.

Joe Patrice: That protest is probably going to be very effectual and change a lot.

Elie Mystal: It’s better than whining, he is unconstitutional, somebody stab him. I am doing more with my pic than those people are.

Joe Patrice: Fair enough, an interesting comparison. This was Elie’s idea so he kind of has the — he has a grand vision. There’s not a lot of — yeah, there is not a ton of like preparation when these are Elie’s ideas, so like we are all kind of flying by the seat of what he wants to talk about.

Elie Mystal: The first thing that I want to talk about and the reason why I thought Tyler would be great to have on this week is that one of my favorite cases from this term in the Supreme Court was decided, the Apple v. Samsung case came down very strongly on the side of Samsung. So from my perspective, that’s a ruling that decreases the amount of protection people have for design patents.

If you are not totally aware of the issue, I am not going to go through the whole thing here, but essentially Apple says that the way that it designed its phone, not just the utility of the phone, but the utility of the design of its phone was entitled to robust protection, equal to the entire profits of the Samsung phone, which had already been ruled to have copied the iPhone design, except for the whole not blowing up part.

Lower courts agreed, the case went to the Supreme Court, and Apple for one of the few times in their long litigation with Samsung got smacked the hell down, where the courts basically did not give it the enhanced protection of its design patents. I think that’s a problem.

Joe Patrice: Yeah. I mean, from my perspective, I thought the decision was correct. I was actually shocked at how correct it was. The discussion is about obviously Apple makes a big deal out of saying how sleekly designed they are, and it’s like this thin, clear, black monolith that came straight out of the beginning of 2001, and they say that that decision to design a smart computer-based phone to look like that is their thing, and they have a design patent on it. And their position was, which I think most people would agree, indeed the court seems to largely agree, the difference is their position is that even though Samsung made a completely different product, the fact that it also happened to be thin, translucent, reflective and black meant that —

Elie Mystal: Curved edges.

Joe Patrice: With curved edges, meant that the entirety of every cent of sales of Samsung phones deserve to go to Apple, which seems like that can’t possibly be the truth.

Elie Mystal: So the court agreed with Joe’s Neanderthal take on it, but a lot of people in your industry Tyler actually agreed with Apple.

Tyler McCall: Yes.

Elie Mystal: Where do you come down?

Tyler McCall: So obviously with the caveat that I am not a lawyer; I have dated a few, which leads me to believe I am smart and qualified enough to talk about this, but I spoke with Susan Scafidi, who runs the Fashion Law Institute, and the main problem in this case is that, in America fashion design has very few protections available to them.

So Susan in the past few years has really taken to helping designers find the few protections that they do have and try and take advantage of them as much as possible. One of them includes this design patent situation, and now they sort of feel like, well, we might be screwed, because there are so few things that deter people from knocking off designers.

You might say, what’s the big deal about that? It’s their job. I mean, it’s a creative industry, and for a lot of these companies, they are smaller companies, they don’t have the rights of a Christian Louboutin or LOUIS VUITTON or any of these people, or Chanel.

(00:10:01)

Elie Mystal: I didn’t know those were two different people, actually, but anyway.

Tyler McCall: And a recent example of this is there’s the shoe company called Brother Vellies. They produce in Africa. She is really bent on; her name is Aurora, she is really bent on making sure everything is produced ethically. She has this whole business acumen, and her shoes became popular. You would see them on Street Style or in magazine editorials, and they probably cost I think somewhere in the neighborhood of $600, $700, which is of course expensive for a shoe, depending on who you are talking to. And ZARA knocked them off for $50.

That’s a problem because, not only have you knocked off her design as a small business owner, you have also totally removed any of the ethical aspect of the design as well. I mean, that’s obviously sort of an extreme example.

You have designers like Alexander Wang seeking these design patents for other purposes, and he is a bigger business, but the idea is that, I don’t know if it’s like puritanical, but America does not really see fashion as art, in the same way that the Europeans do, or even some Asian cultures, Japan for example.

Elie Mystal: That’s an interesting distinction. So you would put yourself on the side of generally more robust protections for design patents.

Tyler McCall: Yes.

Elie Mystal: And Joe, you would be against that because you think —

Joe Patrice: I mean, I think the issue is more definitional here. The difference between knocking off the design of the shoe and saying that a complex piece of machinery that has multiple different components, many of which are actually patented, can be completely invalidated by the infringement of one design patent, I thought was ridiculous. And I think that you can say they breached the design of it and they are liable for that, but that doesn’t mean that the invention of chip X within it, all of that money isn’t money that belongs to Samsung. And I think that’s what that case was about.

Obviously, fashion is in a different situation than that. ZARA probably wasn’t putting some completely different product within that design when they knocked it off.

Elie Mystal: Like it was still a shoe at the end of the day, right?

Joe Patrice: Right. And I think —

Elie Mystal: Put on your feet to help you walk.

Tyler McCall: Yes.

Joe Patrice: Right. And I think that’s the real issue why I don’t think the Apple v. Samsung case is a problem here, because I think that the court can still look at that knockoff and say things like, well, you derived all of your benefit from the fact that it’s a knockoff. It’s not that you had something else and you also borrowed this one design element and we will only charge you for that infringement. Like borrowing that design element was the whole knockoff, and that’s why I don’t think this probably applies.

And I also think, obviously this is where we have another level of disagreement I think legally Elie, I think that that’s an instance where trade dress protection could easily be a thing, depending on how obvious it is as a marker that these shoes look this way because they come from her.

Elie Mystal: I am going to put this out there, and I have talked to Joe a little bit about this before so I am not as interested in his — sorry, I am only as interested in his opinion as I usually am, but I am much more interested in your opinion, so feel free to tweet at me what you think about this statement.

I believe that it’s possible to favor a robust protection of design patents, as I do, while holding trade dress in relative content. I think almost no protection should be accrued given to trade dress restrictions, I think those are stupid, more often than not, and I barely get them to begin with. But you want to go on and say that — go on, defend a red sole is somehow — go ahead.

Joe Patrice: Amazingly, that was the exact one I was going to go with.

Elie Mystal: Which is one of the dumbest things.

Joe Patrice: Because obviously that means something in your industry. And to the extent that it means that thing, it deserves protection. People knocking it off are stealing. That is not something that is design patentable, just making it red is not sufficiently ingenuity to it being a design patent.

Elie Mystal: You know why, because there’s absolutely no utility in painting the soles of your shoe red; well, it’s just a stupid thing some people do.

Joe Patrice: Well, right, I mean design patents can’t be utility anyway, like they may have utility aspects to them, but to get even design patent protection, it must be stuff that is severable from being purely utilitarian. That’s why I think that trade dress has a value, I think even more so than some of these design patent elements. These are decisions that people make — brands make to say my brand looks like this. Everyone goes down to a few blocks from here to buy knockoffs that look like something for a reason, because it conveys some —

(00:15:03)

Elie Mystal: Bourgeois status.

Joe Patrice: Yeah, some status of what the brand is, and that’s why you have got to protect that.

Elie Mystal: And I was supposed to cry that it’s okay that small businessmen on Canal Street can make a living selling bourgeois status to tourists from Kansas and that somehow makes LOUIS VUITTON feel bad, like I am supposed to care about that. I am supposed to give that legal protection.

Tyler McCall: I mean, I can give you my whole spiel about how rip-offs and knockoffs fuel the drug industry, child slavery, there’s like a whole —

Elie Mystal: Fuel the drug industry.

Tyler McCall: Yeah.

Joe Patrice: Oh yeah.

Tyler McCall: Where do you think these come from? I mean not every single one obviously, but it’s a huge thing. LOUIS VUITTON, I don’t know if they care about that as much as the fact that they want to protect their specific brand, which is its own thing. But I mean, yeah, there’s an argument to be made that it’s morally reprehensible to buy a knockoff, just because you want to look like you have a pair of Christian Louboutin shoes. That’s a different argument than what you are talking about.

Elie Mystal: That’s fine. It’s morally reprehensible to buy knockoff, but it’s not morally reprehensible to charge $600 for a shoe, that’s what you are going to come at anyway.

Tyler McCall: It’s not the only shoe, right?

Elie Mystal: How is it not morally reprehensible to charge the kinds of prices that we are talking about, some of these high end couture designers charge, right, $1,300 for a man purse, $600 for a fucking pair of high heels, are you kidding me? That’s a problem to me, and so if a slightly less economically secure person wants to look like they have that completely bourgeois status symbol, but they can get it for $60 on Canal Street, how is that the moral problem?

Joe Patrice: I honestly have no clue where any of the consistency in your stances are. I mean, like what the hell. I don’t understand why people wanted to pay slightly less for the Samsung under that logic, like there’s no purpose to any intellectual property rights under what you just said.

But to Tyler’s point, which I think she probably has more data at the tip of her fingers to talk about is like, there is a pronounced problem with knockoffs and things like child slavery and so on and so forth, and I know this because I did represent in a case a completely independent, not any of the sellers, but represented — the federal government, the US Attorney’s Office made a real crackdown on even just people who have property interests on Canal Street, to the extent that it’s part of this, and it was a focus of the administration because of these links.

Elie Mystal: So you are saying you worked for the man to kick storefronts off the street, like what are you saying?

Joe Patrice: Yeah, because storefront were participating in the child slavery movement and yeah, we thought that was bad as a country. When you talk about America is the worst country ever, I think I like it slightly more than your one, where you want children to be enslaved, so that somebody in Kansas can have a cheaper bag. That’s your stance.

Elie Mystal: I do not support child slavery. Beyond the drug slavery aspect of it, why do you think trade dress deserves as much protection as it can get?

Tyler McCall: Why should you be able to charge $700 for a pair of shoes? Now, depending on the designer, there’s also a lot of material goods — material quality is better, the design quality is better. The product is manufactured probably, I would imagine, not for everybody, but for some, in a more ethical way, which means you are paying fair wages to your workers, you are doing all this kind of stuff. And when you have that kind of stuff happening and you are charging that kind of premium, you want to have a reason to charge that kind of premium. That is more obvious.

So Christian Louboutin, obviously the easiest example of this, the red sole situation, there are people who buy it because there are other high-quality heel shoe designers; there is like Manolo Blahnik, there’s JIMMY CHOO, people by Louboutin because when you see that red sole, that means something, that says something about you, and in selling that they want to protect that image.

It’s not really that different from CHANEL doesn’t want you to call a jacket in a review of another brand, CHANEL-esque, that’s not obviously trade dress, but it’s kind of in that same vein. They want to keep — this is what it means to be this brand and we are going to charge you an insane amount of money sometimes for this stuff, but you are going to spend it because this is what it says.

Now, if you want to argue about spending that kind of money, that’s capitalism baby.

Elie Mystal: I would simply argue that, yeah, it does say something about you if you are going to spend that money. If it says something about me then I have my sweater.

(00:20:01)

Joe Patrice: But note you have that sweater and I think that’s the key to it. You can opt out of the ridiculous consumption mindset by saying I am not going to buy this thing. Buying a knockoff of that thing contains all of the moral reprehensibility of supporting the idea that people should have $700 shoes but does it in a way that’s even worse.

Elie Mystal: Well, a note that I put in my hypo the person buying this is from Kansas, which is part of the country that I can’t stand, so you’re saying that there’s no consistency, there is consistency maybe it’s just not easy to see.

Tyler McCall: Basically just strong line against Kansas.

Joe Patrice: Except he was just protecting their right to buy things for a second go, and there really is just nothing coming out consistently over here.

Elie Mystal: A tray dress and child slavery are not the only moral issues in fashion these days. One of the big ones is kind of going back to where I started, how the fashion industry is going to deal with the fact that the world is a terrible place. Fashionista has taken a very interesting stand regarding Melania Trump and their coverage of her, would you like to —

Tyler McCall: Yes. We have spent not the past eight years I would say, but a good chunk of the last administration covering Michelle Obama’s wardrobe choices pretty extensively because she has done a lot for the American fashion industry actually, from small brands to big-name brands like J.Crew. She’s launched designer careers, Jason Wu is a designer that she wore to the inauguration and she’s done so much that there’s an active interest in what she wears.

Melania Trump doesn’t currently seem to have that kind of interest. She dresses well, I mean, she’s worn some great designer goods, but to my knowledge it’s stuff that she buys off-the-rack that she picks.

Elie Mystal: On Canal Street?

Tyler McCall: I am sure that she couldn’t find Canal Street on a map. So we have just decided that unless she does something that is particularly newsworthy what she chooses to wear to the inauguration for example will likely be newsworthy. We will not be covering her with the same kind of fervor that we covered Michelle Obama.

Joe Patrice: Is that just because she’s not, as you put it, making as much news within the industries or also an effort – it’s your effort to —

Tyler McCall: It’s also because Donald Trump is a generally terrible human being. Any chance to not make him seem less terrible is what I think worth-taking.

Elie Mystal: 22:40 I vie.

Tyler McCall: Thank you.

Elie Mystal: I respect that. What do you think about – I mean this issue came up within the Washington Post today. What do you think about actual fashion designers choosing or not choosing to dress Melania or Ivanka?

Tyler McCall: Right, I mean, that’s kind of, you know, that’s your right as a business person to choose who you do and don’t dress. I think what will be more interesting is to see that I think she’ll probably just continue buying stuff that she wants to wear. And seeing how designers handle that will be more interesting to me if she chooses to buy, let’s just say, a Jason Wu gown for the inauguration for no reason other than the fact that Michelle Obama already did it.

Elie Mystal: She kind of likes doing that.

Joe Patrice: Yeah.

Tyler McCall: No, let’s say she does that and how do they respond to that and that’s what I’m interested.

Elie Mystal: Did they promote the fact —

Tyler McCall: Is it going to be, which designers are promoting, she wore something from Dolce & Gabbana recently, one of the designers that promoted that she wore it. That’s more interesting to me than whether they choose to dress her not because historically speaking, until very recently, First Ladies bought their dresses off the rack, that was part of what was discussed in the Washington Post article.

Elie Mystal: When they got changed?

Tyler McCall: I don’t know exactly when that changed, certainly Michelle Obama bought like Jackie O stuff off the rack for the inauguration. I don’t think that there’s anything wrong with buying stuff off the rack. I think if you want to like show support for American retailers which are struggling a lot right now, that’s the way that you could show support. I mean, there’s different ways that you can do that. There’s not one right way to support the American fashion industry.

Joe Patrice: I mean, ultimately the decision if they came to somebody in the decision not to dress them while there’s capitalist reasons like that’s okay, ultimately there’s the quandary where how is that any different than bakers not baking cakes for gay weddings.

Tyler McCall: Sure, but it’s also in the same line as, I mean, they can’t get anyone to perform at the inauguration.

Joe Patrice: Exactly. No, and that’s the thing and that’s why obviously that was such a — that particular aspect for such a delicate issue was that you open up a can of worms when you go down these sorts of people doing custom services roles.

Elie Mystal: I completely disagree. I think that the baker who is not baking a cake for a gay wedding besides being kind of a 25:03 is denying services to American citizens based on immutable characteristics of their citizens.

(00:25:13)

Joe Patrice: Yeah, Donald Trump is immutably a 25:15.

Elie Mystal: No — no he’s not, and that’s the difference, right? Always not. Like Donald Trump could tomorrow choose to be the less of a horrible he would be, Melania Trump could choose to not have married a horrible human being, and if you’re not working for them, you’re not providing services for them, you’re not providing services for them based directly on their public choices, not their private genetic, whatever; there’s a huge distinction.

Joe Patrice: Right. No, obviously that is a distinction. I really was trying to set up the immutable characteristic thing, but you just outraged all over it, because I thought it was actually a pretty good little —

Elie Mystal: Yeah, you are still in the subtle — you’re still in the subtle mocking of the Trumpkins, I am not anymore close to that. So do you think that the industry’s coverage, do you think that your website’s coverage would have been very different, had it gone the other way insofar as do you think that you would have covered Bill Clinton’s dress choices?

Tyler McCall: You know, it’s hard to say because there’s never been a First Gentleman, is that what we would have called him? I guess it doesn’t matter anymore.

Elie Mystal: Bill Clinton, I don’t think we recall him.

Tyler McCall: I mean, we don’t cover a lot of men’s fashion in general, so that’s difficult. I think it’s probably fair to say we would have covered Hillary Clinton’s choices. I think that would have been a very interesting thing. I was already interested in that, what does a woman wear to an inauguration? I don’t know. I may never know.

Elie Mystal: It’s your problem. I tell you won’t. So you think that you would have — but just to be clear. You think you would have covered Hillary Clinton’s fashion choices even though she would be actually the one in-charge and not paid all that much attention to her husband’s?

Tyler McCall: Yeah, there’s only so many ways to cover a suit. Did you ever try to write about a suit, like more than twice?

Joe Patrice: I mean, in fairness, I think there is, yeah, no, obviously not.

Elie Mystal: Maybe.

Joe Patrice: And there’s obviously also a difference that celebrity men’s fashion, there’s actually stuff to talk about but business, politics —

Tyler McCall: Sure. But I don’t think, yeah.

Joe Patrice: — men’s fashion is entirely, this is the same old thing I just got off the right.

Tyler McCall: I don’t think Bill Clinton was going to show up to the inauguration in like a brown velvet —

Joe Patrice: Right. Exactly.

Tyler McCall: — Tuxedo like Donald Glover wore to the Golden Globes.

Elie Mystal: Oh, that would have been awesome.

Joe Patrice: It would, but the point is, like men’s fashion outside of the kind of celebrities sphere is just boring and —

Tyler McCall: Right, especially in Washington.

Joe Patrice: Yeah exactly.

Elie Mystal: And above that, let’s wrap with a little hot list from Tyler about what people should be wearing to their office in 2017, what’s in, what’s out?

Tyler McCall: I’m obviously highly qualified to talk about this because I’m wearing a sweatshirt with two balloon dogs humping because obviously we work in a casual environment; but, I think right now there are so many people doing really great suiting, believe it or not, for women, that’s interesting. I think that you could still style it.

Elie Mystal: Suiting.

Tyler McCall: Suiting.

Elie Mystal: So for our listeners, let’s go from first principles, what’s suiting?

Tyler McCall: Well, suiting –

Elie Mystal: I am getting it for context.

Tyler McCall: — is a jacket matched often with pants, occasionally a skirt, depending. There’s a lot of that happening right now. I think what’s been really great for me personally because I hate wearing super-high heels is that low chunky heels are pretty on trend right now, which means they’re pretty easy to find, which is good because I think they look professional. I mean, again, 28:43 at a bank so like what do I know about looking professional, but I’ve seen other professional people and I feel like —

Elie Mystal: And they all work in banks.

Tyler McCall: They all work in banks and they all tell me I can’t have any money because I can’t buy $700 shoes. No, you know, I think that that bodes really well. Do women still have to wear a pantyhose in law firms, is that still a thing?

Joe Patrice: Not really. I mean, especially not in the summer. I think different places operate differently. I never worked in a place where anyone cared all that much.

Tyler McCall: Okay, I thought that was like a thing.

Elie Mystal: My wife wore tights at times because it’s warmer.

Tyler McCall: Well, tights, yes. They are like pant with sheer pantyhose.

Joe Patrice: Closed toe versus open toe is still debatable.

Tyler McCall: Okay. that’s fair.

Joe Patrice: I think people still have that debate, some folks don’t care.

Elie Mystal: That’s better.

Tyler McCall:  Open-toed shoes?

Joe Patrice: Yeah.

Elie Mystal: What’s wrong with that?

Tyler McCall: I mean, you know, I don’t love open-toed shoes because you’ve got to maintain like a pedicure situation that looks good. I don’t know, I think there’s nothing wrong with the closed toe shoes. I like them. Are you that hot that your toes like need to be out in the world, is it going to make that much of a difference? I don’t know. I also hate sandals.

Elie Mystal: Do you see what I wear to this offices, it’s like frostbite is no longer concerned.

Tyler McCall: Yes.

(00:30:01)

Joe Patrice: Yes, but literally and mercifully no one is talking about you as a model of what people should wear in a business setting. But, on that subject I have worked in places where that debate still rages, where people like, well, of course open toed is fine, and others are like, really?, among the partnership.

Tyler McCall: I mean I do think it’s weird that people think it’s that big of a deal.

Joe Patrice: Yeah.

Tyler McCall: I just in my own personal life an anti-open toe but —

Elie Mystal: And for the men, is it finally time to rock the bolo tie?

Tyler McCall: Why not. When is it not time to rock a bolo tie? For somebody who hates Kansas.

Joe Patrice: Yeah, exactly right.

Tyler McCall: The bolo tie? Do you have one? Do you want to wear it?

Elie Mystal: Do you have one, I do not remember.

Tyler McCall: I don’t know if you saw this, Matt Lauer has made it legally acceptable for men to wear chokers. I think it’s always okay, because —

Elie Mystal: A choker? I didn’t see it.

Tyler McCall: Yeah, a choker. You didn’t see this? Yeah, that’s like a thing now.

Elie Mystal: Really?

Tyler McCall: Yeah, ASOS is selling them for men, chokers, but for men. It’s not any different than chokers for women they just slap a different label on it and charge less.

Elie Mystal: Wow.

Tyler McCall: That —

Elie Mystal: That’s awesome.

Tyler McCall: That was a gender gap joke.

Joe Patrice: Subtlety is not —

Tyler McCall: Thank you.

Joe Patrice: — not working over here.

Elie Mystal: I am still trying to get my mind around the concept like why would — I don’t understand why women wear chokers much less. You are already wearing I think tie like, how much more asphyxiation do you need in your workday.

Tyler McCall: Don’t king shame people.

Elie Mystal: God.

Tyler McCall: Just don’t. There is so much king shaming going on in this country right now and I just think we need less of it.

Elie Mystal: On that I have got — I have got nothing of all that. I was just told not to king shame, I am done, pick is back in the hair, fist raised.

Joe Patrice: Yeah.

Elie Mystal: I will find a way to overcome.

Joe Patrice: Superb. Thank you so much for walking us through this trip down the fashion industry and by extension intellectual property.

Elie Mystal: Mainly it was a trip down Canal Street.

Joe Patrice: Yes, mainly a trip down Canal Street, yeah. So, with that thanks also for listening. If you aren’t already subscribed to ‘Thinking Like a Lawyer’, you should totally do that, because then more people will listen to it because you will be giving us reviews and stars and it’s just a popular thing to do.

You should tell people at kids’ parties. It’s a good conversation piece that you heard — somebody scream something about the law.

Also, you can read ‘Above the Law’ which is where we are writing. You read Fashionista where Tyler is writing. You can follow people on Twitter and do all those sorts of things.

Elie Mystal: Give us the Twitter addresses.

Joe Patrice: Yeah, @josephpatrice, @elienyc, @ —

Tyler McCall: eiffeltyler.

Elie Mystal: eiffeltyler

Joe Patrice: eiffeltyler, yes that’s right.

Tyler McCall: It’s like Eiffel Tower but with Tyler —

Joe Patrice: Yeah.

Tyler McCall: — because I was cute and clever six years ago.

Elie Mystal: I see that just to force we have to say that.

Tyler McCall: Thank you.

Joe Patrice: Yeah, and then with all of that we will talk to folks in the future.

Elie Mystal: Don’t king shame.

Joe Patrice: Sure.

Tyler McCall: Don’t do it.

[Music]

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