This year, we teamed up with our pals at MSCHF and had Mark Scepi and Stomping Ground Customs give the “Super Normal” Kicks the dope ombré treatment.
VJ
Man, good to see you. Happy New Year!
JB
Happy New Year. I should be wearing the Jayaram hat that you sent me, my replacement hat, you saved my life. I’m not kidding. It’s my favorite hat.
VJ
I love it, man. You know what’s funny? I got this Mets hat on. I’m actually in New York for the next couple of days and I think that’s what drove me to wear this hat too, besides today in this hat, I’m with you. I’m biased, but I wear that hat pretty much every day and my wife, too.
JB
It’s a smart looking hat and I can’t tell you, the number of times I see folks looking at the design up there and wondering, should they ask me about it or not? And then when they had the courage to ask me about it and I explained, “It’s this great firm for innovators, and this is the name of the founder”, their eyes kind of get like this, like, oh clever. Feels good! Did you design it yourself, or did somebody design it for you?
VJ
So, that logo was designed by some very dear friends of mine. They have this agency called Lemon Yellow in Miami and they split time between Miami and Chicago. They’ve built a team now, but Erika Morales and Julian Martin, who started the agency, split their time between both cities, because they love architecture and design. Those are both good cities for that. If you look at the logo, obviously it’s our name, but it comes from this idea of the scales of justice. So the initial sketches sort of began with just the shape of the scales of justice. It was two things – a scale of justice, keeping things balanced, and then it was also the shape of a honeycomb type thing. They thought of that as a symbol for entrepreneurship and innovation and those kinds of things.
JB
Nice. Yeah. That’s so good. Wow. Good.
VJ
You didn’t just start your legal career with MSCHF, did you?
JB
No, I did not. Believe it or not.
VJ
Tell me a little bit about your legal background before you joined MSCHF. Then also, I’d love to hear a little bit about how you met those guys and how you decided to work with them.
JB
Yeah. Sure. In terms of professional background, I consider myself, in some ways, the beneficiaries [sic] of spooky good fortune. And being one of these folks that’s, in kind of a Forrest Gump-ian manner, invited to things before they become things. So, by that I mean, coming out of law school, I spent some time with Ruth Bader Ginsburg before she became the notorious RBG and from there, I went to a little nine person boutique law firm in Chicago populated by seven partners and two associates, myself being one of the associates, the other associate being this guy Barack Obama, before he became Barack Obama. So we were the two folks doing all the work in the nine person firm. Actually, I was the one person doing all the work in the nine-person firm, because he goes off and writes his book and what have you, takes leave his absence. He goes to the White House, I go off to the schoolhouse and become a Chicago Public School teacher.
VJ
What kind of work were you doing with President Obama at the firm?
JB
It was a small, civil rights firm in Chicago, primarily plaintiff side, civil rights, voting rights, employment discrimination. Really intriguing firm that had the luxury of deciding the types of problems it wanted to get itself involved in. We found ourselves handling rather fascinating matters. Again, not to toot any horns, but as evidenced by the existence of associate number one, Barack Obama. Somebody who could have gone literally anywhere in the world after graduating from Harvard Law School and he gave up opportunities to be a Supreme Court Law Clerk or do anything to come to this firm that had a reputation of solving really difficult problems on behalf of folks that often didn’t have anybody helping them solve difficult problems.
To get a little bit more granular – we represented a group of Black women, air travelers who, back in the early mid/late 90s, were subjected to some horrific and invasive strip searches upon the [sic] return to the United States of America. These poor souls were just targeted for horrific scrutiny at the hands of the U.S. Border Control. You couldn’t find another law firm in America that would get on the side of these women, and we did. It was a class, ended up being a class of about 1300 of them, and the principal remedy we were seeking is for the United States government to cease this practice of targeting Black women and to create intervention that took human bias out of the search practices of our airport[s]. So today, when you see those scanners where you have to put up your hands, that was a remedy that was put into place as a result of our lawsuit way back in 1988. We represented a group of women auto assembly workers who were just afflicted by horrendous sexual harassment on the job at a Mitsubishi automobile plant in Illinois. A lot of the fellows that worked there took a dim view on having their shop opened up to women machinists, and there again, these were women who day in and day out were just mercilessly harassed by many of their male peers. They came to us with that problem. There aren’t a whole lot of law firms in America that would have found themselves involved in trying to solve a problem like that, but we were a firm that did that. Those are just a couple examples of the types of things we did back in the days.
VJ
You know, it’s interesting, John, I have to say, outside of IP, which you know that I love and I know that you love too, the other thing that I’m passionate about is wrongful conviction work or habeas work and those kinds of things. Hearing your background in civil rights work and employment discrimination work, for me personally, makes a lot of sense. Because here you are now heading up legal at MSCHF, and I don’t know that everybody would see it this way, but I certainly do. I think a lot of what you probably do, I mean what you advocate for today is philosophically or at least conceptually, somewhat align to that early work you did. What connection do you draw between things like free expression for creative people and artists, and on the one hand and then on the other hand, things like these really horrific issues that you courageously took on in the 90s from civil rights context?
JB
Look, that is a great analog, and a great parallel to draw, stretching back to the civil rights work and pulling that thread all the way to today. I think a commonality is trying to work on the side of the little versus the large, the individual versus the corporation, the poor soul who is resource trapped, whether it’s a woman in a factory or an artist in New York City going up against the well-endowed entity, whether that entity is the United States of America in drip search practices back in the late 90s or the Nike corporation in Satan’s shoes or Jesus shoes. There’s always been something about me and about my view of inequities in the world that would find me aligned with the former, the little, and disinclined to align myself with the latter, the big, the powerful, the corporate. You know this, but you could have been on either side of civil rights back in the day, you could have been on either side of wrongful conviction back in the day, you can be on either side of IP practice today, but I, and it sounds like you, chose to be on the side where justice is seldom properly meted out and that’s on the side of the small. So yeah, that’s a great parallel to draw. Absolutely. It doesn’t jump out at you, right, until you put it out there.
VJ
The two areas that we focus pro bono work on here has been wrongful conviction stuff, and then, to a larger degree over the last three years, women’s reproductive rights. Namely we were the firm that filed a case suing Ron DeSantis in the state of Florida over the six week abortion law there. I have received a few questions after that filing from people who are familiar with the firm’s work who say, “Hey – what does representing creative brands, and what do IP lawyers, have to do with women’s reproductive rights?” I kind of find myself giving somewhat similar answers to you. Well, I studied really hard, and paid a lot of money to get this degree. So might as well put it to use. Was that at all part of the calculus, either consciously or subconsciously when you took the role at MSCHF? Did you have any idea that it was going to become this type of a journey with regard to intellectual property in the courts as it has been?
JB
Well, I certainly knew intellectual property would be a large component of the job, but what was intriguing to me about the position was the ability to continue to function as a generalist in a world that prizes specialists and that sounds like where your mindset is as well. By that, I mean there’s this book out there by this author named David Epstein called Range, and it speaks right to this issue of why generalists thrive in a world that prizes specialists. Part of his thesis is that in a wicked world, and by wicked I don’t mean evil, he doesn’t mean evil, we mean complex, it’s often beneficial to approach that complexity not from the perspective of the specialist, but from the springboard of the generalist. Because as a generalist, you might be able to look around corners that others aren’t accustomed to looking around. You might be able to approach problems from a fresh perspective and, quite frankly, you might be more inclined to ask the so-called “dumb question”. The questions that folks are reluctant to ask or folks think they know the answer to. So the question isn’t even posed.
Jumping into MSCHF was a switch up I do in my professional life about every half decade or decade, and that is getting into an environment where I frankly know nothing about in terms of core specialty skill. I find that context thrilling on a personal level, because you have to kind of figure things out and make fiery use of this general perspective, but once I’ve figured things out, and if you look at my career trajectory over the past quarter century, I then am inclined to move on to the new thing. Because I’m of the view that once you figure things out, you become that specialist and the world, of course, needs specialists, but you become maybe inclined to not kind of look through fresh lenses, to kind of rest on one’s laurels a bit. I’m always looking for this equilibrium where my head is just above water and I’m treading fiercely to keep my head above water and once I’m comfortably on top of that water, kind of like back float kind of thing, then I’m not serving myself well. I’m certainly not serving my entity well, and it’s time to do something different. I knew MSCHF was going to be one of those environments where I’m just going to fiercely tread a lot to keep my head above that water.
VJ
Yeah. We’re very similar in some of these things you’re talking about, which is why I just made a note as you were talking to look at that book Range. I remember two and a half years ago I closed a $120,000,000 series a round for a client, and literally on the day of closing, I was on a zoom, and we were waiting for someone else to get on the zoom. Somebody said, “Vivek, when do you have that appellate argument coming up?” I said, “I think it’s like in three weeks”, and the founder of the company said, “Wait, you go to court and stuff like that?” Actually, that’s what I did for the whole first decade I was doing this. They’re like, yeah, you could tell for a moment she was a little terrified. Then she realized that guy is the one that is closing my deal today, how is this possible? I answer that question a lot around here, even with the younger lawyers who are like, “But how can you jump from a copyright litigation to a transaction?” It’s not like I’ve gone from trademark infringement to heart surgery. It’s all still in law. It’s almost like you’re just adding tools to the toolbox by handling something in these sorts of other areas.
JB
Absolutely. When you do this cross pollination that you just described [what] you’re doing is pausing in that second instance, a re-examination of first principles and, again, I don’t want to lean too heavily into this book Range, but in the opening pages, he has this great vignette of Roger Federer, who didn’t actually begin focusing on tennis till his mid-teens, which by today’s standards is quite late. He did every sport up until then. That general-ism served him very well when he then applied the skills of soccer, footwork, football to his work as a tennis player. Tennis is a wicked sport. It’s a very complex sport because these is some dynamism. He grabbed skills from other sports to sharpen his performance in what became his core sport and again, that’s in essence, an implicit re-examination of first principles.
VJ
I love it. All right. John, let’s talk for a minute about 2023, the year that has just passed us, and another topic that I have a feeling you and I are going to see eye to eye on. 2023, to me, seemed like more than any other year. Fair use rights or the fair use defense, I should say, in the United States, seems to have been eroded during this 12 months more than any other 12 month period that I can recall. Just to contextualize this a bit for the readers, you had the Andy Warhol decision where the estate lost the case against the photographer Linda Goldsmith, the Jack Daniels victory over Bad Spaniels on the dog toy, and another pair of cases , the Hermes first Mason Rothschild case involving the meta-birkin, and then finally, the case that probably was my favorite case is one that you handled, the Wavy Baby case. Somebody asked me the other day, “Why do you say that fair use rights have eroded?”. I just went through those four cases, and they were like, “Yeah, that sounds like a pretty true statement.” But let me ask you: generally, do you agree with me? And if so, why do you think that is? Is it the judiciary, the political climate, society, youth? Is it something else? What is it that changed the notion of what fair use is today in the United States?
JB
If I had put a personal finger on a causal agent, I would probably point to just corporatism and the erosion of fair use being just another manifestation of economic wealth inequality in western societies. Many hoped, as did I, that the big court in Warhol and Jack Daniels would use those cases to reset the pendulum that over the last decade or two, has swung so wildly towards the side of the protection of property rights at the expense of the protection of speech rights and the rights of artistic expression. But the big court did anything but that in Warhol and Jack Daniels. Just as the second circuit did anything but that in our case, Wavy Baby. Instead, the courts used Vans versus MSCHF in the lower court, Mason Rothschild and the big court, Warhol, Goldsmith, Jack Daniels, VIP, as an opportunity to push that pendulum even closer to the side of the corporate property interest in just a terribly dispiriting manner. I was pleased beyond measure when my colleagues at MSCHF provided me the green light to take an appeal of the injunction that was entered against us in the eastern District of New York in the wavy case.
We felt that was an opportunity to obtain a clarification in the law to help reset this pendulum. That backfired. The second circuit even more so than the Supreme Court, Jackie Daniels, just for now, closed the door even tighter against the ability of an artist to lean into, or invoke, or even evoke, any images or property of corporate America in a fair use manner. It’s to say that you can’t even make a joke about a pair of Vans sneakers without running afoul of the second circuit’s trademark infringement jurisprudence. I mean, any bit of art or any culture development you do has to tap into something else in order to create that culture. In order to move the culture, in order to compound the culture, critique the culture, and if you take the Second Circuit’s word in Wavy Baby, in particular, commentary, critique, satire, parody, are now completely off limits because all four of those behaviors require the evocation and tapping into the so called goodwill, the brand of a corporation. It’s just maddening.
VJ
Maddening for everybody. I love your answer. I love how you phrase this in terms of extreme corporatism, but I would say if that’s what this is, I think that it’s not only an expression of hope that we get a more balanced swing back the other way, but actually maybe a message and reset to the corporate world. A reminder that using speech and using creative expression can increase your top and bottom line faster than anything else. I think if we continue to erode, and try to sort of put parody and satire in a corner somewhere, and not invite it into more of a mainstream accepted cultural discussion, we are in danger of having the corporate interests create a very vanilla landscape. That is not the spirit you want to have in what is supposed to be the most entrepreneurial country on the planet.
JB
I couldn’t agree with you more. Just kind of stretching that even further – we’re in this uncanny world where the speech rights of the corporation are now paramount. What I mean by that, corporations are people, and so the Supreme Court has really kind of doubled down on the ability for the corporation to have not only speech rights of its own, but a defensive shield against the speech rights of others. For example, if Nike were a person or Vans were a person, Mr. Vans and Ms. Nike, we could critique Mr. Vans or Ms. Vans to our heart’s content because as a public figure, so long as we’re not being recklessly indifferent or acting with reckless disregard of the truth, we have the ability to critique and comment upon and ridicule and parody Mr. or Mrs. Vans. But by a strange twist, the minute Mr. And Mrs. Vans are a person, not in human form, but in corporate form, we no longer could get away with doing that post Jack Daniels post Wavy Baby, because the moment we critique Vans the person in the form of the corporation, we have to again evoke their goodwill, evoke their brand. But the court says you can’t do that anymore. Whereas if they were a [human] person, we could criticize them and critique them. Just as we saw corporations gain all kinds of speech rights in the realm of political money and political spending and dark money, now we’re seeing them gain these weird and extrapolated so called speech defenses in not a political speech realm, but an artistic speech realm, which is just kind of bonkers. It’s just really bonkers.
VJ
I love how you put that. Yeah. That makes total sense to me and it’s crazy, too, you and I are both working for for-profit companies and so there’s at least some part of us that we are capitalists. But I don’t think that capitalism means you need to completely squish this idea of expression. I actually think it’s the opposite. I think the reason America has become what it has become economically, socially, politically, all those kinds of things, is because, or at least in large part due to, the value that has been historically placed on expression.
JB
Yeah. Also circling back along those lines, something else you just said a minute ago; it’s short sighted on the part of the corporation. Maybe it’s innovators dilemma, so the corporations have these revenue streams and we’re just going to keep kind of tapping in these revenue streams and not look for expanding certain revenue streams by way of innovation, but look, not bringing this all back to MSCHF, post Vans, we did a collaboration with Reebok. We did a collaboration with Crocs. Which were both gangbusters kind of collaborations. We invited a similar collaboration with brands before they sued us, we got so far as to, we were working up press releases about a collab and then it all kind of just imploded right before our eyes, but it doesn’t take much of a stretch of imagination to say if you are a corporation, there is something to be said about tapping into artists and tapping into the creative community in ways that are able to reach brand new audiences.
VJ
Yeah. Look at what Stanley has done in the last year [crosstalk]
JB
Stanley Thermal?
VJ
Yeah. It’s like that team from Crocs that transformed that brand went over to Stanley so there’s a perfect example. A heritage brand looking for some innovations. Let’s use a little bit of creativity and free expression to increase the bottom line. There’s nothing wrong with that, and it’s truly something exciting…well, thank you, John. I appreciate your time. Thank you so much. Always so interesting to talk to you. I really appreciate it.
JB
You got it. We’ll catch up later offline. See you around.
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