Posts by Jeff Trexler

Disappearing Fan Bingbing

Chinese actress Fan Bingbing models a Montblanc watch

Chinese actress Fan Bingbing has mysteriously disappeared after being accused of tax evasion — and she’s started disappearing from her fashion sponsorships as well. Do fashion companies have a responsibility to keep her as the face of their brands? How should fashion brands adapt to China’s political culture? Associate Director spoke with the New York Times about ethics, strategy, and the important Chinese market:

Jeff Trexler, associate director of the Fashion Law Institute at Fordham University, said displays of conspicuous wealth are seen as an affront to the message being promoted by the Chinese government: that everyone in the country is rising upward on an economic wave.

“The more wealthy your spokespeople are, the greater the risk is,” he said.

Companies also worry that if they upset the Chinese government by continuing to promote someone who has fallen from favor, as Ms. Fan appears to have, they might suffer in a variety of ways, from taxes audits to obstacles opening new stores.

What does this mean for marketing strategy? That was a central theme of our longer discussion with the Times — and that will be the topic of a more extensive analysis to follow!

Fakespotting with Tyra Banks

Professor Susan Scafidi and supermodel Tyra Banks standing with scissors to cut authentic and fake Gucci bags

Here’s a look at Professor Scafidi’s 2007 classic appearance on the Tyra Show, where they take their scissors to authentic and fake Gucci bags to see what makes the real difference. For a look at the latest in counterfeit-detection techniques, join us this Friday for our 8th anniversary event, Know Your Faux: New Tactics and Tech for Fighting Fakes!

First segment:

Second Segment:

Bonus unedited version of the second segment from the now-deleted Tyra Show website — originally in a Flash file!

Fashion Law Institute at Comic-Con!

Graphic with three diamond-shaped superhero shields, each respectively with Native American sun design, Tao image, and Africa with green-yellow-red stripes

The Fashion Law Institute returns to San Diego for five panels on fashion law and pop culture! Professor Susan Scafidi and Associate Director will be part of panels including leading designers, such as Her Universe founder Ashley Eckstein and Black Panther jewelry designer Douriean Fletcher; Fashion Law Bootcamp alum and Geekfold founder Lisa Granshaw, and other industry professionals for discussions of the legal side of key issues in geek culture today.

The panels:

Comics, Costumes, and Cultural Appropriation
Modern comics, animation, and related media exhibit an unprecedented degree of diverse representation, but they also raise serious questions about cultural appropriation. Must creators color within the lines of their own heritage? Is wearing a Black Panther costume problematic for anyone not of African descent? Does using folklore or cultural imagery require asking permission from source communities-or even paying them royalties? Jeff Trexler (Fordham School of Law, Fashion Law Institute), Susan Scafidi (Who Owns Culture? Appropriation and Authenticity in American Law), Douriean Fletcher (Douriean.com; specialty jeweler, Black Panther), and Joseph P. Illidge (Valiant) discuss the history, theory, and ethics of comics and cultural exchange.

Careers in Geek Fashion
Geek fashion is an industry that continues to grow each year, and you don’t have to be a designer to work in it. Panelists talk about the career paths available in geek fashion, looking at the jobs within and outside of fashion companies. Moderated by Lisa Granshaw (GeekFold), panelists Sarah Buzby (Ubisoft), Allison Cimino (RockLove Jewelry), Catherine Elhoffer (Elhoffer Design), Jeff Trexler (Fashion Law Institute), and WinterArtwork will discuss their careers and the ways people can work in the industry. There will be a Q&A so panelists can answer any career questions you might have.

The Her Universe Workshop
Want to get in to the business of geek fashion? Calling all designers, artists, lawyers, and entrepreneurs. Founder of Her Universe Ashley Eckstein takes a deep dive into the business behind some of your favorite brands. Joining Ashley will be Trevor Schultz, founder of Loungefly; Cindy Levitt, SVP of licensing/Hot Topic; Theresa Mercado, VP of product development/Hot Topic and Professor Susan Scafidi, founder and director of the Fashion Law Institute at Fordham Law School.

Publishers Weekly: Crowdfunding Ethics and Evolution
Crowdfunding has become an established method of publishing, but as it has grown, questions about how to use it have arisen. What’s the right thing to do when a Kickstarter goes wrong? What’s the next step in crowdfunding? What’s the future of Patreon and Drip? Calvin Reid, Kel McDonald (Sorcery 101), Josh O’Neil (Beehive Press), attorney Jeff Trexler, and Camilla Zhang (Kickstarter) discuss legal and ethical issues in crowdfunding and the latest trends.

“Crazy” Together: The Future of Mental Health and Pop Culture
Mental health is everywhere you look in pop culture. From the Upside Down to the MCU, entertainment media depictions of mental health are increasingly common. But while Stranger Things and Jessica Jones help to normalize mental health challenges, some inaccurate and stigmatizing portrayals persist. How do we further encourage diversity and sensitivity without stifling creativity? Felicia D. Henderson (The Punisher TV series; Teen Titans) will discuss how depictions of trauma and PTSD inform the characterization of Frank Castle. Joseph D. Reitman (Happy! TV series) will talk about his approach to making his character Very Bad Santa more than just a two-dimensional villain. Should the entertainment industry be concerned about how their properties represent mental illness? Vasilis K. Pozios, M.D., (Broadcast Thought, All We Ever Wanted) discusses some of his successes and struggles as a forensic psychiatrist advocating for more accurate and less stigmatizing mental health media representation. Jeff Trexler (The Beat, The Comics Journal) will contextualize the discussion and encourage the audience to become more mindful consumers of mental-health-themed media. Moderated by Susan Karlin (Fast Company), this panel will encourage creators, clinicians, and fans to get “crazy” together, shaping the future of mental health and pop culture.

Comics, Costumes, and Cultural Appropriation

Graphic with three diamond-shaped superhero shields, each respectively with Native American sun design, Tao image, and Africa with green-yellow-red stripes

Join us at Comic-Con in San Diego for a panel with Douriean Fletcher, the specialty jewelry designer for Black Panther, and Joseph P. Illidge, Executive Editor at Valiant!

Theme: Comics, Culture, and Cultural Appropriation
Time: Thursday, July 19, from 12-1pm.
Place: Room 26AB, Convention Center
Panelists:

Modern comics, animation, and related media exhibit an unprecedented degree of diverse representation, but they also raise compelling questions about culture and inspiration:

  • How are today’s cutting-edge designers making global culture a vital part of their work?
  • Must creators color within the lines of their own heritage?
  • Is wearing a Black Panther costume problematic for anyone not of African descent?
  • Does using folklore or cultural imagery require asking permission from source communities-or even paying them royalties?

From creative expression to cosplay and commerce, this panel will discuss the styles, history, theory, and ethics of comics and cultural exchange!

Free Post-#MeToo Clinic CLE

Humans of Fashion and Fashion Law Institute logos

Join the Fashion Law Institute in supporting the Humans of Fashion Foundation and taking positive steps forward!  HOFF is preparing to launch an app to connect individuals from throughout the fashion industry with concerns about harassment to the help they need -- whether legal, medical, therapeutic, or eventually mentorship.  

If you are an attorney willing to volunteer to conduct intake interviews with people seeking help, please join us for a training session conducted with the assistance of the NYC Commission on Human Rights.

DATE: Wednesday, July 11
TIME: 6:00-8:00pm, with reception starting at 5:30pm
PLACE: Fordham Law School, 150 W. 62nd Street

There is no charge for this event, but please register to reserve your space and to volunteer.  Participants will receive 2 hours of NYS CLE credit.

Requiescat in pace: Stephen Freedman

Professor Scafidi, CFDA Chair Diane von Furstenberg, and Provost Stephen Freedman seated at the announcement of the world's first master's degrees in Fashion Law

Stephen Freedman, Provost of Fordham University, was a friend of the Fashion Law Institute from the beginning. Not only did he have family connections to the industry, but he also had a kind word whenever we saw one another on campus — and he was probably the only chief academic officer of any university ever to request an invitation to a Marc Jacobs runway show. (Thanks again to our friends there!) Of the many projects Stephen helped facilitate at Fordham, he always said that the founding of the Fashion Law Institute was one of the two of which he was proudest.

We’ll miss you.

Photo: Professor Susan Scafidi, CFDA Chair Diane von Furstenberg, and Provost Stephen Freedman at the announcement of the world’s first master’s degrees in Fashion Law.

Sales Tax, SCOTUS, and Retail Technology

Front page of 1943 National Bellas Hess catalog (courtesy of Sensibility.com) and front page of Supreme Court's Wayfair opinion, which overruled the Court's 1967 National Bellas Hess ruling

The Supreme Court has overruled decades of precedent establishing that sales tax could be required only when the seller has a physical presence in the state. As a result, online sales can now be subject to taxation in the state and local jurisdictions where consumers make their purchases, even if the seller has no other link to where the transaction takes place.

The case, South Dakota v. Wayfair, Inc., Overstock.com Inc., and Newegg.com, Inc., was a topic of discussion in the lively tax panel at the Fashion Law Institute’s most recent symposium. As the panel noted, the Supreme Court’s sales tax jurisprudence prior to the new ruling in Wayfair arguably cost states billions of dollars in tax revenue from online transactions, a problem that the South Dakota law at issue in Wayfair sought to solve by requiring online sellers to collect tax “as if the seller had a physical presence in the state.” Although this law was deemed invalid by lower courts applying long-established precedent, the state called for the Court to overturn its earlier decisions in light of the new economic environment created by the robust online market.

Fashion and the law before Wayfair

Wayfair has at least a couple direct connections to fashion. One of the respondents challenging the South Dakota law, Overstock.com, is a longtime online seller of clothing, jewelry, and accessories. To see why it would oppose the South Dakota law imposing sales tax on online sales, we need only look to the company’s FAQs, which as of this post date still reflect the law before the Supreme Court’s Wayfair ruling. As the Overstock.com FAQs note, pre-Wayfair companies had to collect sales tax only in states in which they resided, which meant that Overstock.com only customers in two states had to pay sales tax. This gave Overstock.com, along with other online retailers, a decided advantage over brick-and-mortar shops: where the online sellers were not collecting sales tax, Overstock.com items effectively enjoyed an automatic discount.

Overstock.com FAQ stating that retailers have to collect sales tax only in states in which they are residents

As it happens, the physical presence doctrine, which Wayfair overruled, itself went back more than five decades to a fashion case: National Bellas Hess v. Dept. of Revenue. In this 1967 decision, the Supreme Court found that an apparel mail-order catalog company did not have to pay sales tax on purchases sent to states where it did not have a physical presence, such as a brick-and-mortar shop, warehouse, or employees. According to National Bellas Hess, for a state to collect sales tax on catalog purchases and other transactions where the retailer lacked a physical presence in the jurisdiction would be “an unconstitutional burden upon interstate commerce,” a conclusion later upheld in Quill Corp. v. South Dakota.

Changing technology –> changing law

Mail-order catalogs were an analog ancestor of today’s digital merchants, but the Wayfair Court sees digital sales as distinct in both substance and scale. The majority opinion holds that exempting online transactions distorts the market in a way that is itself unconstitutional, inasmuch as the resulting discount arbitrarily skews the market in favor of sellers without a physical presence in a particular state. The centrality of evolving tech to Wayfair is particularly evident in the following passage from the majority opinion:

The Quill Court itself acknowledged that the physical presence rule is “artificial at its edges.” 504 U. S., at 315. That was an understatement when Quill was decided; and when the day-to-day functions of marketing and distribu­ tion in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety.

Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. In a footnote, Quill rejected the argument that “title to ‘a few floppy diskettes’ present in a State” wassufficient to constitute a “substantial nexus,” id., at 315, n. 8. But it is not clear why a single employee or a single warehouse should create a substantial nexus while “physi­cal” aspects of pervasive modern technology should not. For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or cus­ tomers may download the company’s app onto their phones. Or a company may lease data storage that is per­ manently, or even occasionally, located in South Dakota. Cf. United States v. Microsoft Corp., 584 U. S. ___ (2018) (per curiam). What may have seemed like a “clear,” “bright-line tes[t]” when Quill was written now threatens to compound the arbitrary consequences that should have been apparent from the outset. 504 U. S., at 315.

The “dramatic technological and social changes” of our “increasingly interconnected economy” mean that buyers are “closer to most major retailers” than ever before— “regardless of how close or far the nearest storefront.” Direct Marketing Assn. v. Brohl, 575 U. S. ___, ___, ___ (2015) (KENNEDY, J., concurring) (slip op., at 2, 3). Be­tween targeted advertising and instant access to most consumers via any internet-enabled device, “a business may be present in a State in a meaningful way without” that presence “being physical in the traditional sense of the term.” Id., at ___ (slip op., at 3). A virtual showroom can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores. Yet the continuous and pervasive virtual presence of retailers today is, under Quill, simply irrelevant. This Court should not maintain a rule that ignores these substantial virtual connections to the State.

Knitting yarn and the devils in the details

In holding that sales tax may be imposed on transactions in which a seller does not have a traditional physical presence in a particular jurisdiction, the Wayfair Court has created a new sales tax landscape for sellers of all sizes, from multibillion-dollar companies to small-scale designers on Etsy. As Chief Justice Roberts notes in his dissent, this has the potential to expose sellers across the country to a dizzying array of rules over 10,000 state and local jurisdictions, many of which are not obvious: for example, “New Jersey knitters pay sales tax on yarn purchased for art projects, but not on yarn earmarked for sweaters.”

However, as the Wayfair opinion notes, in practice the legal situation may not be so complex. Tech itself provides a solution to the problem it could create, inasmuch as there is already software that can process transactions across products and jurisdictions. Moreover, not all sales tax laws would extend to smaller sellers; the South Dakota statute at issue, for instance, “applies only to sellers that deliver more than $100,000 of goods or services into South Dakota orengage in 200 or more separate transactions for the delivery of goods and services into the State on an annual basis.” In this regard, as noted in the symposium, sales tax administration in the U.S. is already developing adaptive standardization akin to the new value-added tax system in the European Union, where the collection and distribution of the VAT is being streamlined to reduce the burden on sellers.

What next?

Whatever one’s perspective on the outcome, the Wayfair ruling illustrates a recurring theme in both the symposium and the Institute’s upcoming Silicon Valley edition of Fashion Law Bootcamp: new technology can give rise to new law.

National Bellas Hess cover courtesy of Sensibility.com.

NYC Acts on #MeToo Reform Recommendations

Three images: NYC First Lady Chirlane McCray hightlights Denim Day at Gracie Mansion; Fashion Law Institute logo pin with official NYC anti-harassment button; New York City Commission on Human Rights Deputy Commission Dana Sussman and her newborn

On Wednesday, April 25, Professor Susan Scafidi and Associate Director Jeff Trexler joined New York City First Lady Chirlane McCray and the New York City Commission on Human Rights at a special event in Gracie Mansion to mark the release of the Commission’s new report, “Combating Sexual Harassment in the Workplace: Trends and Recommendations Based on 2017 Public Hearing Testimony.” The report makes multiple references to the Fashion Law Institute’s recommendations for legal reform, a number of which were also adopted by the New York City Council in its landmark Stop Sexual Harassment in NYC Act.

The report and selections from the Act can be found below, along with our written testimony and the transcript of the spoken testimony at the 2017 NYCCHR hearing. Pictured above: First Lady McCray shows her jeans to highlight Denim Day; the Fashion Law Institute’s logo pin with the official NYCCHR pin in the campaign against sexual harassment; and NYCCHR Deputy Commissioner Dana Sussman and her newborn daughter, empowering the new generation!

SexHarass_Report
Pages from CCHR_SexualHarassment_Hearing_Transcript_12.6.17
testimony-NYCC
The New York City Council - stop sexual harassment act

Symposium Highlights and Photos!

Professor Scafidi and guests at our 8th annual symposium

Thanks to all of our amazing panelists, attendees, and student volunteers for another successful symposium! We learned about the latest in fashion tax and tech, new developments in legal and industry reform aimed at curbing sexual harassment, and cutting-edge strategies in the worlds of streetwear and social media. For highlights from the panels, check out these write-ups from the Fashion Innovation Alliance, Geekfold, and Lookonline.com, and The Fashion Law Chronicles — and we have a photo album up at our Facebook page.

And be sure to save the date for our 9th annual symposium: April 12, 2019!

Student volunteers and Professor Scafidi at the registration desk for the 8th annual symposium

More Testimony on Harassment

Jeff Trexler and Professor Scafidi testifying before the New York City Council

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.

testimony-NYCC