Since Taylor Swift’s handmade Chiefs jacket went annoyingly viral in January, Kristin Juszyck, the designer and wife of 49ers fullback Kyle Juszyck, has gotten millions in free publicity for her business and inked a rare licensing deal with the NFL, which, frankly speaking, could have sued her into a hole in the turf. It’s a Cinderella story or, better put, it’s a One of the Talking Mice that Dressed Cinderella story, but the Designs By Kristin saga begs a question that hasn’t been fully answered: Is the NFL’s approach to merchandising and trademark infringement… dumb?
The NFL has, in the past, been incredibly militant about protecting IP. NFL licensing lawsuits are so common there’s a term for the league’s strategy: Legal Blitz. Under the first sale doctrine, the league holds exclusive rights to the “first sale” of branded merchandise. (Second sale is different, which is why second-hand clothing stores can exist.) But there is a notable and critical exception.
“A DIY recycled jersey, or a gift to a friend, is outside of the reach of the law,” explains Susan Scafidi, the founder and director of the Fashion Law Institute at Fordham Law School. “But once the item is offered for sale, the brands’ trademark attorneys may start gearing up for their own game days.”
This is presumably why Designs by Kristin bills its business as “Custom Reworked Clothing.” That said, Kristin was probably still an ineligible receiver of consumer cash. Under first sale doctrine, a brand can argue that consumers are likely to be confused by a transformed product and assume it came from the original brand. According to Scafidi, material difference lawsuits are fairly common. It’s no small wonder. The Chiefs alone are worth $4.3 billion.
“I’ve worked with the NHL and their team will inspect even the copyright C next to the little puck, it’s that level of detail, you know?,” says Pretti Gopinath, Director of the Textiles Department at Parsons School of Fashion. “Every little aspect that you wouldn’t think would be important is the most important thing to these companies. Those of us who work in the industry don’t enjoy it.”
This is where things get interesting. Why did the NFL give Juszyck a tush push rather than a penalty? Because all good press is good press, sure, but also because there was a genuine response to what Juszyck created. And NFL merchandise very rarely generates much of a response at all. The league has a massive reach and almost no fashion imprint. Contrast that with, for example, the Premier League, which works with Stella McCartney, Prada, Maharishi, and plenty of other brands and inspired the whole Blokecore movement, and it’s clear that, when it comes to clothes, Goodell and the boys have taken an L.
In trying to entirely own the NFL merch market (and maybe corner it with help from Fanatics), the NFL quashed the market for unexpected, league-inspired designs.
“The NFL is a monopoly and there’s no creativity here,” says Sucharita Kodali, a retail industry analyst at Forrester. “These sellers are trying to Uber-ize merch through grassroots efforts at disruption. But even Uber faced a lot of legal issues and did a lot of shady things. Are the little people going to be able to do what they do? Most have not yet, to date. And this woman is bigger than most little people, right? But is she going to be the one? It’s unlikely.”
Put a bit more succinctly, it’s in the NFL’s interest to let fashion people try some stuff because they might succeed where the league has failed. And there’s precedent for this. Dapper Dan, Harlem’s original copyright freestylist, had his business shut down in the 1980s due to material difference concerns, but the same brands that took action against him wound up coming back and begging him to work with them. Why? He had a vision for luxury brands that resonated with consumers.
“Dapper Dan was famous in Harlem… but he was breaking every law. But Once you have the cool folks of the day and influencers wearing it, now all of a sudden it’s cool. ” says Gopinath. “You need a visionary saying ‘Hey, let’s change it. We need new designs…. That’s very rare because the paper pushers don’t want the hassle.”
Does the NFL have that visionary? Honestly, problem not. But Kristin Juszyck had a vision and that is worth something – potentially millions for both her and the league.
