Copyright in Sneaker Design

On January 29th, the New York Times ran this story:

"Tribute Brand
By ROB WALKER (NYT) Mike Sneakers
Scott Nelson loves Jordan. He calls Michael Jordan the greatest basketball player ever, and he started wearing Air Jordans, the sneakers made by Nike, as a skateboarding and basketball-playing teenager back in the 1980's. As a grown-up designer working in the ''streetwear'' subculture of the apparel business, he even interviewed for a job at the Jordan brand. That gig never came to pass, but Nelson found another way to fuse his Jordan fanship with fashion, with a brand called Mike.
If you happen to see a Mike T-shirt or cap, it might strike you that there's something kind of familiar about the design. The word ''Mike'' is executed in a sharp, forward-leaning, sans-serif font that looks an awful lot like the one you've seen on other clothes and sneakers that say ''Nike.'' You might also notice a silhouette of a jumping basketball player -- quite reminiscent of the icon used on Jordan-branded shoes and apparel. There are also Mike sneakers, which, Nelson explains, are based on Converse Chuck Taylor All Star low-tops, executed in an elephant-skin-like pattern that was used on the third version of the Air Jordan in the late 1980's. Given all this -- and throwing in the fact that Nike bought Converse a few years ago -- you might assume that these are Nike products. But they're not. They're Mike products, designed and sold by Nelson.
Nelson is not trying to pass off his clothing as Nike goods, in the manner of a Canal Street counterfeiter. Nor is he engaging in some kind of subversive satire, like AdBusters magazine's famous twisting of Joe Camel into a dying and bedridden Joe Chemo. ''I'm strictly paying homage,'' he says, adding that he doesn't expect any trouble. He did talk to a lawyer first and says he believes he has tweaked everything enough to be on the right side of the law, but that's not the real reason he's confident. ''If anything,'' he says, ''I'm helping their brands.''
At first, this sounds like a bit of a stretch, but Mike is an example of the sometimes porous border between brands and their fans and how hard it is to nail down who ''owns'' what. Susan Scafidi, a Southern Methodist University law professor, examines such questions in ''Who Owns Culture? Appropriation and Authenticity in American Law.'' In an interview, she compared the Mike brand to the ''fan fiction'' that some Star Trek enthusiasts write, in effect building new content (and new communities) out of somebody else's intellectual property. While Nike, Converse and the Jordan brand ''have given the consumer a vocabulary of style,'' Scafidi says, at least part of the ''meaning'' of sneaker brands today has been defined by consumers who turned athletic shoes into a staple of contemporary street fashion -- a phenomenon explored in the recent documentary ''Just for Kicks.''
Like the fan fiction writers, Nelson has moved from consumer to reinterpreter, adding ''street edge,'' as he puts it. (Maybe the most interesting thing about Mike is that Nike itself would be extremely unlikely to use an Air Jordan graphic pattern on a real Converse sneaker, since the company prefers to keep those brands separate in the marketplace.) Nelson's products are produced in very limited quantities, have been highlighted in alternative-culture magazines like Mass Appeal and Juxtapoz and are sold only on his Web site and in a handful of boutiques -- like Colette in Paris, Commissary in San Diego and the aNYthing store in downtown Manhattan -- that cater to the hard-core street-fashion fanatic. His audience, then, is exactly the trendy consumer tribe that sneaker makers court relentlessly.
Still, as Scafidi also points out, the law is much more geared to protecting individual (and corporate) property than ''collective creativity.'' While creators of Star Trek have been unusually liberal about fan fiction (even in its raunchiest variations), many intellectual property owners respond with cease-and-desist orders, even if it means going after their own consumers. By and large, she points out, ''corporations don't hesitate to appropriate and commodify urban culture; they just don't like the equation reversed.'' A Jordan brand spokeswoman declined to answer questions about the Mike brand. But Nelson is so confident that he holds out the possibility of working with the Jordan brand in some more officially sanctioned way. ''It would be an honor,'' he says. "

Here is a link to his website, which has a picture (the site loads slowly) to the elephant design sneakers. There are far more serious trademark issues than copyright ones in this story, so perhaps my friend Marty Schwimmer of the Trademark Blog will take them up, and I will leave to others what appears to me to be on the facts a rather fatuous "homage" defense. But there are copyright issues with sneaker designs. I have alot of them (sneakers), including Chuck Taylors, and Nike (AF1, no Air Jordans).

There are three possible copyright issues with sneaker designs. The first is the easiest: the two dimensional designs imprinted on them are protectible under the same standards that apply to carpets and shmata. Under that standard some designs will be protectible, and some won't. Two-dimensional designs on sneakers have become big business and have attracted fashion designers like Marc Jacobs (for Vans), LA tattoo artist Mr. Cartoon (again for Vans), as well as posthumous designs licensed by the estate of Andy Warhol (Vans once again), and Jean Michael Basquiat (Reebok).

Then there are the soles. In SCOA Industries, Inc. v. Famolare, Inc., 192 USPQ 216 (S.D.N.Y. 1976), the court held that "There can be no valid copyright in troughs or wavy lines on the sides. These have no existence as works of art and if they did have, even the minimum originality needed for copyright." The court was, no doubt, correct as to that design and perhaps almost all others since most soles are designed to be slip resistant and to avoid retaining debris, but there can be very rare exceptions. For example, the Basquiat Reeboks have his representational devil character on the sole. A Chuck Taylor hi-top Converse by Jim Lee uses Batman, with a themed design on the sole. These are of course pre-existing works of art imprinted on the sole, and thus are distinguishable, but "Doggy Biscuitz" designed by Snoop Doggy Dog for Pony shoes, has a ornate bandana design carried over from the fabric design on the shoe itself and etched into the sole that might well pass muster since the design itself serves no utilitarian function and is, at least to me, original.

The final issue is the three-dimensional shape of the shoe. As fantastic as many of the shoes are, I can't see the Copyright Office accepting them for registration. For a design patent infringement case, see LA. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117 (Fed. Cir. 1993).