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.”
Looking to develop an area of legal expertise? The National Jurist recommends pursuing a Fashion Law LLM with the Fashion Law Institute at Fordham School of Law. More here, including observations by Professor Scafidi.
You might also want to note that the list of valuable areas of expertise also includes admiralty and maritime law, which can be quite useful in building a fashion law career for anyone interested in shipping & global trade.
Dead to Rights: Ethical Perspectives on Cultural Appropriation, Postmortem Rights of Publicity, and the Ghost of Harvey Weinstein
DATE: Thursday, October 26, 2017
TIME: 6:00-7:50pm (reception 5:30pm)
PLACE: Fordham Law School, 150 W. 62nd Street, 2nd floor
NYS CLE: 2.0 hours ethics
Halloween and the Day of the Dead are fast approaching, and for this year's annual ethics CLE event, we'd like to treat you to a pair of thought-provoking panels. Join us for an insightful -- and at times hair-raising -- discussion of issues from intellectual property's twilight zone and on the cutting edge of sexual harassment law:
- When does a costume constitute cultural misappropriation?
- How can we keep fear of cultural appropriation from curtailing cultural exchange in fashion?
- Should fashion houses be haunted by ghosts of celebrities past in states without postmortem publicity rights?
- Bibhu Mohapatra
- Mimi Plange
- Professor Susan Scafidi
Founder and Director, Fashion Law Institute
- Yeohlee Teng
Founder and Designer YEOHLEE Inc
- Carlene Thomas-Bailey
Senior Editor, WGSN
- Do settlement agreements in sexual harassment cases bury victims in unethical silence?
- What does Harvey Weinstein's ghastly employment contract say about the spirit of corporate law?
- Should business partners be scared off by allegations of sexual harassment?
- What can we do to make the fashion industry a less frightening place?
- Laurie Berke-Weiss
Principal Attorney, Berke-Weiss Law PLLC
- Dana Sussman
Deputy Commissioner for Policy and Intergovernmental Affairs NYC Commission on Human Rights
- Bernadett Vajda
Model and Image Consultant
- Kenya Wiley
Founder and CEO, Fashion Innovation Alliance
- Elizabeth Wurtzel
Writer and Lawyer
MODERATOR: Jeff Trexler, Attorney and Associate Director, Fashion Law Institute
WWD has a roundup of reactions to the Harvey Weinstein news and its implications for the fashion industry. Here’s an excerpt from Professor Scafidi’s comments:
Legally, many models who experience sexual harassment have no recourse unless they are actually threatened or physically violated, in which case criminal law may apply, assuming enough evidence to bring a case. Since models are considered independent contractors, sexual harassment laws designed to protect employees typically do not apply. New York State’s inclusion of models under 18 in its child performer protection law starting in 2013 was a victory, but more legal support is necessary. In fact, in an era when traditional employer-employee relationships are giving way to the gig economy more generally, society as a whole could benefit from studying the problems experienced by models and creating structures to combat sexual harassment and abuse in every context.
If you missed our anniversary event — or would like a reminder of its key points — Laurel Marcus at DFR: Daily Fashion Report has a smart and fun write-up here! The article provides a comprehensive overview of the panel’s main points, and you’ll also read about Professor Scafidi’s tribute to the late Pierre Bergé and the connection between Taylor Swift and the Gucci jacket featured in the pic below — and for more pics from the event, check out the photo album on the Fashion Law Institute’s Facebook page!
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.
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.
For more on fashion law and IP, check out Fashion Law Bootcamp: Special Edition in Silicon Valley!
Celebrated indie designer Thaddeus O’Neill has been racking up honors for his luxury line inspired by surf culture: Woolmark Prize finalist, top 10 in the CFDA/Vogue Fashion Fund competition, and now a CFDA Fashion Incubator designer. Like any savvy creator, he is seeking to protect his brand equity by registering his trademark, but this is where the legal surfing has become a bit heavy, as European-owned apparel brand O’Neill is challenging the registration.
The Fashion Law Institute has put together a pro bono team to help Thaddeus with this case, with Roxanne Elings of Davis Wright Tremaine serving as counsel, and Professor Scafidi has this to say about how emerging designers can protect their interests:
“There is such a long history, particularly in the fashion industry, of designers using their names on the label and consumers understanding that companies may have similar but different names.”
What recourse does O’Neil have now that O’Neill has shown signs of not backing down? “He can fight this on the grounds of tradition and by showing the opposite of what O’Neill is trying to claim, that the products are different.”
For more, check out coverage of the dispute in The Business of Fashion.
For more on fashion law and tech, check out Fashion Law Bootcamp: Special Edition in Silicon Valley!
As we become ever more dependent on smartphones, tablets, and digital watches, recharging our batteries has gone from a metaphorical refresher to an all too literal imperative. Researchers at UC-San Diego, however, are pointing to a new way of addressing this problem beyond endlessly looking for outlets in all the wrong places: powering devices with your own sweat.
From the abstract in the latest issue of Energy and Environmental Science:
This article describes the fabrication, characterization, and real-life application of a soft, stretchable electronic-skin-based biofuel cell (E-BFC) that exhibits an open circuit voltage of 0.5 V and a power density of nearly 1.2 mW cm−2 at 0.2 V, representing the highest power density recorded by a wearable biofuel cell to date…. When applied directly to the skin of human subjects, the E-BFC generates ∼1 mW during exercise. The E-BFC is able to power conventional electronic devices, such as a light emitting diode and a Bluetooth Low Energy (BLE) radio. This is the first example of powering a BLE radio by a wearable biofuel cell. Successful generation of high power density under practical conditions and powering of conventional energy-intense electronic devices represents a major step forward in the field of soft, stretchable, wearable energy harvesting devices.
As one of the researchers explained to New Scientist, “We’re now getting really impressive power levels. If you were out for a run, you would be able to power a mobile device.” What’s more, this could also make be used to power wearable sensors to gather and send health data. As fabric technology continues to advance, we could see activewear textiles valued not just for their capacity to evaporate sweat, but to harness it.
Of course, with great power comes great responsibility, and the legal ramifications of recharging through wearable fabric run from skin interactions, FDA regulation, and data security to more tangential risks of litigation. And this just touches the surface as to the ramifications of textile tech — we’ll be exploring these issues and more at our upcoming Fashion Law Bootcamp: Special Edition in San Francisco and Cupertino!
Was it illegal for G-III to replace Ivanka Trump labels with those of another brand? Lauren Sherman asks Professor Scafidi for The Business of Fashion:
“US textile product labelling laws allow substitution of labels, so long as the entity making the substitution is identified on the new label and keeps records for three years,” explained Susan Scafidi, professor of fashion law at Fordham Law School and founder of the Fashion Law Institute. “This is mostly for supply chain tracking reasons. All of the other required information on the label — fibre content, country of origin, etcetera — must be maintained.”
“If the original label [is replaced] with that of a third party unaware of the substitution, the [responsible party] would be liable to the third party,” Scafidi says. “All of this derives historically from the law of fraud.”