Cutting Edge – Articles
More Testimony on Harassment
Professor Scafidi & Jeff Trexler testified on fashion and sexual harassment reform before the New York City Council – and they welcome your comments! Their written testimony is below – scroll within the box for additional pages or click to download.
Fashion and Sexual Harassment
Forty-two years ago, the New York City Commission on Human Rights held a historic hearing on sexual harassment, and on Wednesday night (December 7) the Commission held the sequel. Professor Scafidi and Associate Jeff Trexler were invited to testify, and Jeff spoke at the event, which can be viewed here.
Their draft testimony presented to the commissioners at the hearing is below -- scroll down within the box for full text -- and they welcome your comments! Feel free to contact them by emailing jeff@fashionlawinstitute.com.
Below: Congresswoman Eleanor Holmes Norton led the first NYC hearing on sexual harassment, and she keynoted the hearing on December 6.
Forever 21 throttled in Gucci case
By Jeff Trexler
When Forever 21 filed for a declaratory judgment against Gucci in retaliation for Gucci’s C&D, it was a move clearly designed to go viral — and outside the courtroom, it worked. The fast-fashion company’s complaint was instant clickbait, with countless headlines propagating Forever 21’s florid claims that it could vanquish Gucci’s purported stranglehold on stripes.
Monday’s summary judgment in Gucci’s favor is a pointed reminder not to judge the strength of a case by its likes and shares. Yes, on the surface the judge leaves the door open for the Forever 21 to amend its complaint to address the issues raised in his order, but those of you who have been in the legal biz for any length of time know the old rhetorical trick. The judge disses Forever 21’s arguments with cursory brush-offs that can be summarized as follows:
However, since the Oh Really? Owl meme has not been formally recognized even by the Ninth Circuit as sufficient grounds for dismissing a case, the judge oh so graciously, with expansive deference to court procedures, gives Forever 21 eleven whole days to come up with a new basis for its lawsuit “if plaintiff still wishes to pursue this action.”
Which is secret judge code for “No, you really don’t.”
Athlegal Panel Recap
Fashionable sports fans recently packed the room at Fordham Law for a Fashion Law Institute panel, “Athlegal: Sports, Innovation, and the Future of Fashion,” evidencing widespread interest in the relationship between sports and style. After signing in next to a pair of classic Chuck Taylor All-Stars emblazoned with the Institute’s logo of a needle and thread forming a gavel, this author spent far too much time contemplating the purchase of his own custom pair of Converse sneakers while at the breakfast buffet. The audience was lively and eager to meet the panel, buzzing from either caffeine or their morning workout endorphins.
The simultaneously informative and engaging panel was composed of Angela Byun from Conde Nast’s Golf Digest; Ronald S. Chillemi from the sports apparel company Fanatics, Inc.; James Grooms from New York Road Runners, organizer of the New York City Marathon; and Susan Rohol from Nike; and it was moderated by Professor Susan Scafidi, founder and director of the Fashion Law Institute.
Given the widespread adoption of the awkward but ubiquitous term “athleisure” and the rapid takeover of consumers’ wardrobes by that product category, the panel’s topic was extremely timely. While the relationship between sports and fashion is straightforward, from professional athletes appearing in fashion editorials to designers showcasing track pants on the runway, the value of intellectual property for an athletic apparel company is decidedly more complex. Topics ranged from two recent lawsuits in the athletic apparel industry, both involving Lululemon against competitors, to an overview of the various tools in a company’s intellectual property arsenal including patents, further divided into design and utility; copyright; trademark and trade dress; and licensing. Though opinions diverged regarding the most effective intellectual property tool against competitors, trademark licensing and copyright seemed to tie for first place, with Nike leading the pack in design patent as a top-ten registrant in the U.S.
The panel also discussed the technological advances that many manufacturing companies are incorporating into their daily operations. These advances result in improvements not only in the manufacturing process but also the final product. On an environmental note, many companies are engaged in admirable sustainability efforts such as using lasers to reduce waste. Other revelations included the contribution of athletic apparel to the fashion industry as a whole, including advances in textile technology. The sheer size of some athletic apparel companies’ intellectual property portfolios impressed attendees, as did the Nike origin story featuring track coach and inventor Bill Bowerman, co-founder, experimenting with a waffle iron to create a sole with greater traction on the company’s first shoe, debuting in 1974.
In the realm of elite competition, innovation in performance apparel can even go too far, as in the case of the full-body Speedo LZR swimsuit that was ultimately banned by the international body governing swimming competition as unfair to more traditionally dressed athletes. When does advanced apparel technology confer too great an advantage? The panelists agreed that each case is different, but that the analysis turns on accessibility of improved technology to all competitors.
So just how important is intellectual property to the athletic industry? It’s a heavyweight contender with a knockout punch. Any, or all, forms of IP can be used against parties attempting to unfairly profit from a company’s business. In other words, these tools protect the value of the brand, both in terms of economic and social value. Similarly, intellectual property considerations are becoming increasingly important to individual athletes. Don’t believe me? Just look at Michael Jordan’s brand.
Consumer demand in the overlapping performance and athleisure apparel categories remains high, as both athletes and fans seek out ever-increasing performance, comfort and style. This growing sector presents stylistic and financial opportunities for companies seeking market share, but copyists and counterfeiters also present challenges. In the end, best legal practices may not guarantee winning the marathon, but companies can thank their intellectual property portfolios and enforcement programs for keeping them in the race.
by Vincent D. Nguyen
Model Statement: Kudos to Kering and LVMH
The Fashion Law Institute applauds “The Charter on Working Models and Their Well-Being” issued jointly by the world’s two largest luxury conglomerates – and its challenge to the rest of the fashion industry to join them. This statement is the latest crest of a growing wave of concern for the health, safety, privacy, and dignity of fashion models that has included public regulation (in order: Madrid, Milan, Israel, New York State, France), industry guidelines (CFDA Health Initiative, Danish Fashion Ethical Charter), advocacy (Model Alliance, initially founded and directed with the assistance of the Fashion Law Institute), and the voices of current modeling industry insiders (notably and recently James Scully). Not since Vogue’s decision to cast only models 16 and over for the editorial content of its editions worldwide, however, have individual fashion-related companies put their reputations on the line and made such a public commitment to change.
The Charter is a comprehensive, standard-setting, buck-stops-here statement that has the potential to address the most difficult aspect of reform in the modeling industry, namely finger-pointing and the passing of responsibility. If designers say they cast U.S. size zero models because that’s who agencies send, and agencies say casting directors and fashion houses only select size zero “girls,” and young models are caught in the middle, it’s difficult to effect change. By stepping up and creating the Charter, LVMH and Kering – and their many influential labels – could help break the impasse.
Some aspects of the Charter will be difficult to monitor – the measurements of a U.S. size zero or French 32 vary from brand to brand and even garment to garment, for example – but collectively the provisions reinforce one another and reflect an understanding of models’ basic needs and concerns. After listening to models’ surprised and overwhelming gratitude when we offered something as simple as bottled water while casting a Fashion Law Institute show a couple of years ago, and previously seeing a model nearly faint after refusing to eat or drink backstage, we are convinced that even acknowledging the issues is a step in the right direction.
While the Charter’s creators can expect positive publicity, their joint statement actually carries significant risk. There are bound to be instances in which the Charter’s ideals are not met, and the sharp-eyed gaze of a thousand models’ mobile phones and social media accounts could potentially embarrass the companies. And in fashion, the most feared sanctions aren’t legal fines or even the potential for lawsuits – they’re negative headlines.
So kudos to Kering and LVMH for their ethical actions, and here’s hoping that other brands, modeling agencies, media outlets, trade associations, and individuals throughout the fashion industry will see them as role models.
After Eden: Plus-Size Fashion History at NYFW
Hot Topic‘s sister brand, Torrid, recently announced plans to show at New York Fashion Week — but drew criticism for incorrectly claiming that it would be the 1st plus-size brand to do so. Actually, Eden Miller’s Cabiria Style line was celebrated internationally for breaking that barrier back in 2013 during the Fashion Law Institute’s 3rd anniversary show in the official IMG tents at NYFW. We’re proud that some traditional brands have since followed suit, casting models of all sizes as part of a tend toward greater diversity of all types. The Fashion Law Institute thanks and congratulates Eden again — and welcomes Torrid to the runway.
Raising the Bar: The New Dior Retrospective
One of the added benefits of being in Paris during the latest couture week was having the opportunity to view this historic look on display at the opening of the spectacular new fashion exhibit celebrating the Dior legacy: Christian Dior: Couturier du Rêve at the Musée des Arts Decoratifs. The exhibit highlights a range of issues pertinent to understanding the legal aspects of the fashion industry, from the impact of public policy and government action on design innovations to the interplay of fashion, art, nature, and technology.
Above: Anna Wintour contemplates the early work of Dior's protege and chosen successor, Yves Saint Laurent.
One historic example of the interplay of law, culture, and fashion is the iconic design featured above: the Bar. In 1947, Dior's celebrated New Look swept a fashion world coming out of World War II, a time when both the visual form and material content of fashion had been constrained by wartime austerity and textile rationing. The exhibit further highlights how Christian Dior's pre-fashion career in the art business immersed him in the world of surrealism and modernism, which in turn gave Dior a heightened sense of structure and form.
Of course, Dior's work inspired a number of copies around the world. Some were officially licensed. Others, such as the items depicted in the above 1960 ad from Alexander's department store, were not, leading to lawsuits that did not always work out in Dior's favor.
The exhibit also explores fashion's interplay with technology and nature. One impressive display shows iconic photos of Dior's designs that dissolve into the dresses themselves. The image below captures the transition with Richard Avedon's historic Dovima with Elephants.
Biomimetic design, which takes direct inspiration from nature, is itself the central theme of the section dedicated to Dior's garden. Not only does this part of the exhibit explore how flowers guided both the shape of and prints on his designs, but it also points to the work's continued influence. Case in point: the connection between Dior's blue rose dress and David Lynch's short film in which Marion Cotillard discovers a Twin-Peaksian blue rose in a mysterious Dior bag.
Below: an example of Dior's interaction with global culture -- in this instance, Egypt.
Another fascinating aspect of the exhibit is its exploration of the Dior atelier, from sketches and inspiration books to a truly unique opportunity to discuss the Dior couture process in action.
The presence of the atelier illustrates how the exhibit does not merely look to the brand's past -- it also takes you through the history of the entire brand. There are sections dedicated to various Dior designers, the brand's perfumes and accessories, and its philosophy of what we would now call cross-platform brand identity. One particularly noteworthy feature is the room that takes you from the New Look to the present day in a single sweep.
All in all, the exhibit provides a forum for reflecting on a fashion as art -- and in the words of Marshall McLuhan, as a technological extension of our evolving selves.
Facing the Future of Wearable Tech
Louis Vuitton has announced its new Tambour Horizon smartwatch with Android Wear. Wearables, of course, are only one part of the fashion tech world, but they are perhaps the most conspicuous symbol of how technology is once again poised to remake not just design aesthetics, but law and social norms.
We’ll be discussing this in greater depth in our upcoming Silicon Valley Fashion Law Bootcamp, but for now I want to focus on what this highlights about what Professor Scafidi memorably referred to as “fashion as information technology.” Fashion has always been in the information business, from expressing the identity of both designer and wearer to the revolutionary role played by the Jacquard loom in laying the groundwork for modern computing. While collecting information has always been an essential element of design and commerce, the new fashion tech embodied in wearables and smart textiles connects the brand itself to the creator/wearer nexus. Clothes that once stopped communicating with companies upon leaving the shop now provide a continual pipeline of data, making fashion a quintessential information business.
With information equity rising in significance alongside goodwill and real estate, the potential for transformative change rivals that of early industrial machinery. We’re already seeing far greater potential for a net positive impact on the environment and health, a far cry from the world that gave rise to Dickensian deterioration and Marxist manifestos. Even with benign change, however, we can expect that the unprecedented access to data will give rise to new demands for regulation, which, like the aesthetic approach to technological design, will require an artful response.
Faces Off: Kendall + Kylie – Tupac – Biggie
For more on fashion law and IP, check out Fashion Law Bootcamp: Special Edition in Silicon Valley!
Kendall and Kylie Jenner sparked online outrage over their line of tees imposing their own faces and initials over images of such iconic musicians as Tupac Shakur and Notorious B.I.G. The sisters have apologized and the line has been withdrawn — in this Yahoo News article, Professor Scafidi explains why:
It’s possible to thread the needle of legally and culturally acceptable unauthorized use — but attempts to use celebrity images on apparel without permission more often wind up in a face plant.
Eponymous Lex: Legal Risks of Designer Names
For more on fashion law and IP, check out Fashion Law Bootcamp: Special Edition in Silicon Valley!
Naming a brand after oneself is a longstanding tradition in the fashion world, but as a number of designers have learned this can be a risky enterprise. Professor Scafidi explains in this article on Quartz:
“Once your name is a corporate asset, then investors are going to want a piece of that corporate asset—or full ownership of that corporate asset—which is great as long as you and your investors are getting along,” Scafidi says. “But typically there will be some point at which you, the designer, and your investors part company, and that leaves you walking nameless into the night.”
For more on this issue, including the story behind Joseph Abboud’s quest to regain the right to use his own name, check out the whole article here.