Sunday Morning Hot Tea - No. 17
Winning the Showcase Showdown and Wedding Dress Designer Blues
Welcome to Sunday Morning Hot Tea where I write about a little something up top then answer a legal question for you down below. This week – I got engaged and feel like I hit the jackpot, plus, would you trade your name for money?
In this edition
Topic of the Week – The Maybe Payoff
Legal Question – Something Borrowed - The Downside of Trading Your Name for Cash
TOPIC THIS WEEK: The Maybe Payoff
I am a gambler. I love scratch offs and slot machines and the thrill of “maybe.” It is because I am an optimist. Most rational people look at a slot machine with a giant jackpot flashing in lights and think, Yeah right. They see a scratcher promising the possibility of $10,000 per week for the rest of your life and walk away from the checkout line, scratcher un-purchased.
Not me. That “maybe” draws me in every time. Optimism – sweet, foolish optimism – is in my bones. My daddy was a gambler. He played the lottery religiously. Bought a ticket every week. He relished trips to the casinos in Oklahoma and Louisiana, or the jackpot of them all – Las Vegas. He always played to win, but rarely did. His game was video poker. He was on a perpetual hunt for the elusive Royal Flush. Game after game, he would throw away winning hands that would have netted a lesser win because he was on a mission for the top prize.
This seems stupid if you look at it pragmatically. Curious for myself, I went to that well of knowledge, Google, and asked, “Should you try for a royal flush in video poker?” It didn’t outright answer, “No, dummy,” but it came close.
According to Casino Player Magazine, you are likely to be dealt three of the five cards needed for a royal flush about one time every 7 to 8 hours of game play. It brings a real rush to get that close, and you think I almost had it! Even with those three cards, your odds of hitting a royal flush are 1 in roughly 380,000. So, yes, technically there is a chance, but it’s so small. Or is it?
In 2068, the Earth has a 1 in 380,000 chance of being struck by an asteroid the size of the Eiffel Tower. According to How Stuff Works, if an asteroid the size of a house struck Earth, it would have the same impact as the bomb dropped on Hiroshima. One the size of the Eiffel Tower would then, logically, be slightly worse. So that could happen. Or, you could hit a royal flush in video poker.
Somehow when it’s something bad, 1 in 380,000 sounds a little more likely. Why doesn’t it sound so possible when it’s something good? Why can’t we let ourselves hope and believe a little?
It was my known love of scratch-off lotto tickets or “scratchers” that got me standing on a balcony on the day before Easter this year. My sister, Shannon, and her best friend, Misti, had orchestrated our entire weekend getaway to the Broken Bow Lake area of southeast Oklahoma. It’s a beautiful refuge I’d been to a handful of times before with high school pals on weekend party trips.
Lush with greenery and a wide, blue horizon broken only by the dark blue of the lake, its beauty is stunning and frankly surprises people. You show them photos, and the reaction comes, “That is Oklahoma?” Yeah, it is, and maybe don’t besmirch an entire state if you’ve never been there.
Shannon and Misti rented a cabin for us all listed as “Viewtopia” on AirBNB with a panoramic view of the surrounding greenery and the lake in the distance. The back balcony proved an ideal place for me to write, or for Misti’s husband, Michael, and my brother-in-law, Aaron, to smoke cigars. It also turned out to be a great place to get engaged.
After my nieces had finished their day-early Easter egg hunt out front on Saturday morning, we settled into the living room watching the girls pop eggs open and emptying out the candy inside.
I had been told earlier to dress up because we’d be taking family Easter pictures. Reluctantly, I changed from a flannel and my Curb Your Enthusiasm “Pretty pretty pretty pretty good” shirt into a semi-nice blouse from Target, black with small flowers. I paired it with the only pair of jeans I wear and my walking shoes – navy blue Allbirds with athletic socks.
That morning as Paris shaved, fixed up his hair, and meticulously chose his outfit, I mentioned that I had a “real all-natural mermaid look” going on with my hair. It had air dried the night before, and I didn’t want to fight with dragging comb through it.
“Do you maybe want to comb your hair?” he asked.
“Nahh.”
In the living room before the girls’ Easter egg hunt, Misti mentioned how she’d be putting on makeup and a dress.
“I left my makeup bag in Dallas,” I said. Her eyes bulged.
In my jeans and Target blouse, hair in beachy, tangled waves, and with my unmade-up face, I sat with the kids and Paris in the living room in a sea of plastic eggs.
Without warning, Shannon and Misti rounded us up and herded the entire crew to the back porch.
“We don’t want Easter to be just about the kids,” Shannon said. “So we came up with a little plan.”
“My dentist said her kids are grown, and instead of candy in the eggs, she hides eggs with cash and lottery tickets,” Misti said. “When she told me that, I thought what a fun idea it would be to do a grown-up Easter egg hunt for us.” I do concur that grown-ups like lotto tickets and money, but we like candy, too. Nevertheless.
“The dads can work with the kids to hunt, and Heather and Paris can be on a team.”
Like most things in life, I said ok and got to it. My brother-in-law and younger niece went ahead of us, and the other dad-daughter pair brought up the rear. Paris and I walked the wrap-around balcony as I gathered plastic Easter eggs in my hand.
A couple things: I was not given an Easter basket. This made things difficult as I cradled the eggs in my arm like a ridiculous infomercial actor fumbling in black-and-white being asked by a narrator, “Got too many eggs to handle? Try the Egg-o-Matic!”
Hands full, I was forced to work smarter, not harder. I noticed that the smaller eggs had cash in them while the larger eggs contained the scratchers. I stopped going for the small eggs. After all, I know where to find cash – the ATM, or cash-back at the grocery store, or in a piggybank I keep on top of my dryer. What I wanted was that sweet, sweet scratchin’ paper, which meant I was leaving the small eggs behind.
My smallest niece spotted a shimmering gold egg perched up on one of the cabin’s jutting crossbeams, about six feet in the air.
“Oh, look! A gold one!” she said.
Too busy with my scratchers to help her, I said, “Oh yeah, you should have your dad get that one for you.” My brother-in-law didn’t reach up. He ignored it and me and kept walking forward, shooing his daughter away from the eggs and ushering her around a corner, out of sight.
Behind me, the other dad-daughter duo were picking up eggs and trailing close behind.
“Babe, move!” his wife called to him. He slid backward, kid in hand, away from us. I continued collecting lotto eggs, unbothered.
“You should grab that egg,” Paris said, pointing at the gold egg above our heads.
I noted it was small. “Nah, it’s not one of the ones with the scratchers in it.”
He insisted. “Grab that one.”
I only remember what happened next because of the many videos taken of the moment. At the time, I kind of blacked out.
“Open it,” he said.
“Let me see, hold on,” I said, struggling with the six or seven eggs I was holding. “I wanted scratchers,” I continued, placing the eggs down on the wooden bench of the porch. They fell to the floor. “Oh no, my scratchers!” I yelled in a much more country tone than usual.
As soon as I cracked the golden egg, I screamed, jumping from one foot to the other as if I’d been called to come on down on The Price is Right.
“The greatest egg of all,” I said after screaming. “Oh my God. I’m going to faint off the side. I’m going to faint off the thing.”
With the utmost sincerity through my subsiding screams, Paris told me he’d never been happier since we met and that he wanted to keep doing this forever.
“This” apparently is living with my unbridled enthusiasm. My response was, “Oh my God. I had no idea. I thought it was going to be a scratch-off lottery ticket. It’s the best, though, it’s so much better. I love you so much.” It all poured out then I wrapped him in a hug and a kiss.
It’s important in life to find someone who balances you out. While I tried sealing the deal immediately, Paris reminded me that I hadn’t been asked anything yet.
“I know, but I love you.” I said, hugging him. I let go. “Ok, now you can ask me.”
He then dropped to one knee, which prompted another round of screaming and Price is Right jumps. When he asked, “Heather, will you marry me?” I screamed once again like I’d won the Showcase Showdown. Getting to marry him feels pretty much like I did.
For about a dozen years starting in my early 20s, I had it in my head I wasn’t a catch. I thought people “put up” with me or “dealt with” me. I believed whatever boyfriends I could get were the best I could do. That I was lucky to have anybody. I believed that as a beggar, I was in no place to be a chooser. I wasn’t shooting for the royal flush, but instead was clinging to every hand, feeling grateful for each pair of twos I’d been dealt.
When I lost my dad in September 2017, something started to shift inside me. See, he was the one who believed I could do no wrong. I have a card he wrote me I keep as the wallpaper on my phone. It says, “Every time I hear of something you said or did, I always say, ‘That’s my daughter.’ I’m so proud of you. I love you very much. – Dad.”
Even if I dated fuckabouts and pairs-of-twos, I at least had that card up my sleeve. I knew, in his eyes, I was the best thing that ever hit this planet. But I didn’t believe it for myself. Not until he was gone.
They say when people die, energy can’t be created or destroyed. I know his energy – that part that was always proud of things I said and did, and that unceasing hope and optimism that the next hand could be a royal flush – became a part of me when he died.
The shift that started when he died grew over the years into an avalanche. By the time I was ready to meet Paris, I had stopped hanging on to things that no longer served me in a belief that the best that I could do was just OK. I decided not to settle and not to believe people must “put up” with me. I had decided to be proud of who I am and what I offer and believe in the value of my time. I also decided to date only hot guys.
I had settled for dating just-OK guys for a long time. (If you’re reading this, fellas, first of all – why you here? Second of all, you know I’m not wrong.) When you do the math on it, shooting for mediocrity really doesn’t make sense. We’re each only endowed with our one “wild and precious life.” Why waste it with anyone who doesn’t make your heart flutter or think you shit rainbows and vomit up sunshine?
Enter Paris. Spring of 2019, I had previously deleted all the dating apps on my phone, done with the parade of just-OK I had endured. Then in March, as I co-officiated my friend Lindsay’s wedding, I saw the pure and true love that happened between the bride and her new husband, Jay. The man sobbed when he saw her in her dress. He sobbed when she walked down the aisle. They beamed at each other in a love that filled up the whole church. The whole city, actually. It was fricken adorable, ok? And I thought, if a pair like that, so perfectly matched, could meet on Bumble… well, maybe things weren’t all lost for me.
So I re-downloaded the app and within weeks matched with Paris. Initially, I was convinced that I was being catfished. First of all, he’s hot. Second of all, his name is Paris. Clearly fake. Third, he mentioned coffee and tacos and movies in his profile. All things that sound designed to hook me.
Even all this time later, all the hours we’ve spent together, all the things we have gone through – some days I don’t believe he’s real. I mean, yes, I have a ring on my hand and he put it there. But who’s to say that’s not all part of the con? It’s not a con, of course. The fact is, when you win big, it feels unbelievable.
In the end, I got my royal flush, my one-in-three-hundred-thousand- asteroid-striking-the-earth. Sometimes the house wins, sure, but every once in a while, someone’s gotta be the one who hits the big win. I’m glad it was me this time. I’m glad I held out hope in the face of catastrophic odds. I can’t help it. I’m optimistic. What can I say? It’s in my genes.
***
Speaking of wedding dresses…
QUESTIONS FROM YOU – Something Borrowed: The Downside of Trading Your Name for Cash
This week’s question comes from Abby via the form. Abby asks:
“So I'm not sure if you have heard or are following anything happening with the wedding dress designer Hayley Paige. From her account, the company JLM Couture has taken all rights to her name, including her presence on social media. I've tried reading the court doc that JLM posted in their Instagram bio but it's all gibberish to me. Is what they're doing justified? What is their claim to her name anyway?”
Excellent question, Abby!
Here’s a short-ish run-down of the situation going on in the wild world of wedding gowns. For a longer play-by-play, check out this piece from Business Insider.
On July 13, 2011, budding wedding dress designer Hayley Paige Gutman signed an employment agreement with JLM Couture, a bridalwear manufacturer. At just 25 years old, Gutman was offered the opportunity of a lifetime – design bridal gowns for a heavy hitter dress manufacturer and receive their support and compensation in exchange.
In an email at the time of signing, JLM wrote to Gutman, saying, “Attached is a signed contract. Hayley please confirm you have reviewed this with your attorney.”
Gutman responded, “Thank you for sending! I have reviewed with my attorney accordingly.” She’s now saying that email was a lie, and she never hired an attorney to review the agreement. Honestly, that may be the case.
If I had reviewed her employment contract, I would have had a couple notes. First of all, the language in her contract is pretty broad. It gives JLM the exclusive rights to use and trademark the name “Hayley Paige” and variations thereof as well as “the exclusive world-wide right and license to use her name ‘Hayley’, ‘Paige’, ‘Hayley Paige Gutman’, ‘Hayley Gutman’, ‘Hayley Paige’ or any derivative thereof” during the stated term of the employment contract and for two years thereafter.
Even if you’re not a lawyer, you can imagine that “exclusive right” and “exclusive world-wide right and license” are pretty broad and sweeping. That means only JLM can use those names or decide who else can use them.
The rights also last for the entire term of the contract PLUS two years. So, she should have been real sure about what she was giving up – in this case, her name – even though she was being compensated for it.
That compensation came in exchange “for the assignment of the Designer’s Name and the Trademarks” to the Company. She literally traded her name for compensation. This is a big decision. Huge! Not one to undertake without representation.
To really finalize the deal, JLM had Gutman sign a trademark registration acknowledgment, confirming that she had transferred all trademark rights in the name “Hayley Paige” and any derivatives thereof to JLM and that she consented to the registration of the trademark “Hayley Paige.” After that, JLM actually owned her name for use in business.
Over the next few years, Gutman created a brand around herself and her designs, posting them across social media including on Instagram under the handle @misshayleypaige. The Instagram gained over a million followers as fans followed her posts about her dog, her personal life, and especially her bridal gown designs. She became more and more well known and even appeared on the wedding show Say Yes to the Dress on TLC.
In late 2019, after extending her contract through August 2022, Gutman created a TikTok using @misshayleypaige on which she posted mostly personal content. JLM’s CEO Joe Murphy then allegedly asked her to post brand-approved content only.
Instead, she changed the password to the 1.1 million-follower @misshayleypaige Instagram account, locking out JLM’s social media manager who had been assisting with the account. Over the next few months, she removed some posts regarding JLM and her bridal line and took two influencer deals to make money posting about unrelated third-party products on the account. One was a salad dressing company and the other was whey protein. She also removed references to JLM in the account’s bio.
JLM and its CEO Joe Murphy didn’t seem to care for this too much. They requested login credentials to the @misshayleypaige accounts. According to JLM, Gutman allegedly ignored or refused these requests. In response, JLM sued Gutman on December 15, 2020 for a long list of stuff, including trademark infringement and dilution, false designation of origin, unfair competition, conversion, trespass to chattel, breach of fidelity, breach of contract, breach of fiduciary duty, and unjust enrichment.
Since then, a federal court has granted a temporary injunction giving JLM control over all of the @misshayleypaige accounts. JLM also sought the court to order the-designer-formerly-known-as-Hayley-Paige from “publicly disparaging JLM” and from “continuing [her] social media bullying campaign” against JLM. The court denied this part of the request as it would constitute “prior restraint” in violation of Gutman’s First Amendment rights.
On April 9, 2021, JLM announced that a new designer would be creating the gowns under the Hayley Paige line. That person? Not named Hayley Paige. She is Francesca Pitera, a former designer for Monique Lhuillier who had prior experience with JLM on another line.
With that injunction, Gutman has been restrained from using her own name in business and is enjoined from using the @misshayleypaige social media accounts. Now to answer the questions…
Is What They're Doing Justified?
It would appear so. It super sucks that she gave away the rights to her name in that contract. I have no clue in what universe you would negotiate a deal to assign the “exclusive right” and “exclusive world-wide right and license” to your name without a lawyer. I do not live there. I get that she was 25 at the time, but in the eyes of the law she was still grown and able to make that agreement.
When I was 25, I was just starting law school. I don’t think I would have even trusted myself to sign something like that without a lawyer. Bless her heart, as we say in Texas, but the language of that contract is mega-broad and she agreed to it.
In another provision of the contract, she agreed that any other “works” conceived of or developed by her in connection with her employment with the Company are “the sole and exclusive property of the Company.” In the court’s opinion, the term “works” includes the Instagram and TikTok accounts she created after her employment term began.
Because her contract required her to assist with advertising, the creation and use of the accounts to promote the brand fell under “employment” and were “works for hire” belonging to JLM. It appears from the language in the court order that she operated the account as an extension of her duties at JLM. She got input from JLM and its employees on what captions to use and on responding to DMs. Therefore, the court said, the social media pages were created by Hayley Paige the employee for work purposes and therefore belonged to JLM.
Gutman argued that the accounts were created for her personal use rather than business use. However, there was internal communication that indicated she mixed in the personal stuff as a marketing tactic, rather than as a form of personal expression. She stated in an email that she needed a social media director to help with the account to “maintain the balance specifically on the @misshayleypaige account . . . [because] I think it’s important that we do not dilute this Instagram with too much promotion/advertisement so that we can maintain the aesthetic and personality of the brand.”
Were the cute dog and fiancé photos really to express her joy? Or were they posted to avoid “diluting” the page with promotion/advertisements to preserve the aesthetic of the brand? The court decided it was the latter.
In its order on the temporary injunction, the court concluded that she assigned “Hayley”, “Paige”, “Hayley Paige Gutman”, “Hayley Gutman”, “Hayley Paige” and any derivative thereof to JLM. The court also concluded that the language of the contract “unambiguously encompasses” both “misshayleypaige” and “@misshayleypaige,” which are derivatives of “Hayley Paige” because they only add the word “miss” to the beginning.
So yeah, at least according to the federal court and based on the language of the contract, they are justified in claiming use of those accounts.
What is Their Claim to Her Name Anyway?
They paid for it. Not only did she receive a base pay and additional sales volume-related compensation, she is also entitled to receive a further percentage of “net revenues derived from the sale of goods” sold under her name and the other Hayley Paige trademarks for ten years following the termination of her employment with the company.
This means even after her contract ends in August 2022, she is entitled to receive payments based on future sales that use her name for another full decade.
Is that compensation worth it to give up your name? I don’t know. I wouldn’t shake on that deal, but everybody is free to make whatever deals they want to make. Maybe JLM will sell an ass load of Hayley Paige wedding dresses and Gutman will never have to work again so it will all have been worth it. On the other hand, maybe they’ll sell a bajillion dresses, but even then she may not feel like it is enough compensation to warrant losing her name.
The real rub is that, as it stands, she is pretty much bound. Absent the court undoing the contract (which I doubt will happen given the court’s language in the preliminary injunction docs) that’s the deal she made and that’s the deal she’s gotta live with. This is especially true since the contract does not include a provision permitting Gutman to terminate it on her own (“unilaterally”). She’d have to get JLM to agree to releasing her. Otherwise, her actions may be considered repeated breaches of the terms of her agreement, subjecting her to having to pay damages or to further injunctions.
The answer to all this is probably negotiating a settlement. From JLM’s perspective, it looks pretty bad to be doing this, even if they are within their rights under the law. The @misshayleypaige account currently under the control of JLM has turned its comments off, attempting to avoid online backlash. JLM also claimed in its complaint that some bridal boutiques have quit carrying the line due to the legal drama.
For what it’s worth, Gutman has counter-sued JLM, claiming (1) JLM “willfully failed to pay and/or unlawfully deducted Additional Compensation due to” her, (2) she was defamed by JLM in private and in public, and (3) JLM CEO Joe Murphy sexually harassed Gutman and others and created a hostile work environment.
If they don’t settle, then at least Gutman will get her day in court. Until then, she’s known on Instagram as @allthatglittersonthegram where she recently put out a request for suggestions on an all-new name she plans to choose for herself.
I hope that answers your question, Abby! Thanks for sending.
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
Until next week, that’s the tea and you can call me Heather B.
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