Fashion Law: An Inside Look

Introduction
 

Arguably, fashion law has been around since the establishment of the first fashion house; it was just not an established field nor was it needed. Designers, at the time, did not fight against the duplication of their items. They actually were flattered by the replicas. Why? As a designer, when your designs were copied that typically meant that you were popular. It was free publicity. Now, fast-forward to 2012 and that mentality has shifted. Designers are taking offense to the duplicates and knock-offs produced by copycat companies. Why? They are losing hundreds of thousands of dollars for every replica item sold on the market. The worst part is that they are not protected by the law: copyrights, trademarks, and patents do not protect designers; and thus the necessity for a new field of study: Fashion Law.


Fashion Law as a Field: The Origins

Fashion Law? Seven years ago, those words did not co-exist. There was not a field dedicated to the fast paced lives of fashionistas, designers, producers and the like. The idea of creating the field was frowned upon by the academics and shunned by all movers and shakers within the law field. However, there was one woman who felt the need to explore the intersection of these two entirely different worlds. Susan Scafidi's goal was not to create a new field of law, she was merely interested in how her eye for fashion and J.D. could mingle, “As an aspiring scholar and then a junior professor, I did not set out to launch a new field of law, to tap into deep family background in the fashion industry, or even combine my interest in law and fashion on a professional level, but I could not resist exploring the intersection of the two.” (page 8)

Over time, she had to resist the urge to merge these fields. Scafidi sought out her predecessors to look into the possibilities of establishing fashion law: what it could do for the legal field, how lucrative it can be and the new set of minds that would be interested in law school. No one could take the idea of fashion law seriously; it seemed “frivolous”, “unimportant”, “girly”, and most importantly “non-academic”. Trying to stay on track for tenure, Scafidi hid her research and no longer openly pushed the idea of fashion law to her peers. She secretly did so. Post tenureship, Scafidi re-approached fashion law through a blog: http://counterfeitchic.com/. Launched in December 2005, the blog provided an outlet for Scafidi's research and quickly began to grasp the attention of academics, designers, students and those merely interested in the fashion world.

It would be incorrect to say the Scafidi was the sole person to begin to merge law and fashion. About the sametime, there was one book written that she based most of her research on: “Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys” (2009) by Guillermo C. Jimenez and Barbara Kolsun; but she definitely was the biggest influence. With the launch of her blog, skeptics still scoffed at the idea of fashion law but they read, argued about, and referred her it to their students. After all, “it was the first blog to connect the legal community with the fashion world.” (page 9) It took a law school willing to risk offering a fashion law course to skyrocket the interest in fashion law: Fordham University. One class turned into many and thus fashion law was born.

Now, fashion law is the fastest growing industry in the law community; lawyers are needed from finding the best deals for retail stores, to selling high-ended designers fashion to the highest bidder, and even copyright protection for the up and coming fashion student.

What is Fashion Law?

So what exactly is fashion law? Fashion law is a rapidly growing specialty that deals with aspects of intellectual property, including copyright and trademark law, business law, licensing, textiles, merchandising, and, on occasion, the import/export side of customs. A fashion attorney negotiates the best deals for his or her clients. Those clients may be large retail chains, haute couture labels, high-fashion models, or an unknown designer just starting out. If and when the situation arises, a fashion attorney will litigate for his or her clients in court.

A more comprehensive definition of fashion law consists of providing advice on intellectual property and commercial matters to fashion houses, designers, manufacturers, distributors, modeling agencies, retailers, and photographers. It covers everything from branding, protection, and enforcement of intellectual property rights to the non-contentious commercial side of the business, such as licensing, manufacturing, and distribution contracts and agency and franchising agreements.

Fashion houses and accessory designers both face unique challenges specific to their industry. They require attorneys who understand the nature of short seasons and ever-changing product cycles, pressures surrounding counterfeit goods, and the issues of unfair competition. Valuable assets in the fashion business consist of not only intellectual property rights, but also trade arrangements, contracts, and information technology systems. A fashion attorney's career success may depend on being able to effectively protect these assets by delivering industry-specific legal advice tailored to the clients' needs.

Fashion law is a unique specialty because of its focus on intellectual property. And this is also where it gets complicated. You would believe that intellectual property law would protect those within the fashion industry. So there would not be a need for fashion law…correct? Not exactly. Intellectual Property covers copyright, trademarks and patents, but fashion items have a difficult time falling in these categories.

 

1. Copyright protects artists and literary works. BUT, it does not protect functional creations. UNLESS, the functionality is separate from the design; which is nearly impossible to prove in court cases; meaning almost everything in the fashion industry cannot be protected under copyright laws; clothing serves a function and it is creative. For example: a dress with a print on it. According to the law the print itself is protected; the dress is not. Just as long as other companies do not use the print on the dress, they are legally capable to copy the design.
    
2. Trademarks only protect logos used to brand the company. The Nike “Swoosh”, The Coach “C's”, The Lacoste “Alligator” are some of the most recognizable examples. The issue of designs, colors, hemlines and cuts still plague those designing. Major labels consistently see knock-offs of their products being produced and sold at extremely cheap prices. An individual has the legal right to create the exact same product a major retailer as long as they did not include the label, they are in the clear. Fashion Law has given designers the legal ground to stop copycat designs from being produced. Recently, there has been the implementation of the Trade Dress (under the Lanham Act) which will protect “the look and feel” of a design based on two criteria: distinctiveness and functionality. However, there is a catch—the item must be deemed iconic. It can not be influenced by previous fashion trends: the Hermès Birkin bag.
    
3. Patents and design patents protect new ideas—like the development of a new rubber used in wristbands or discovery of new types of fabric. It does not protect the design—once again.

As you can see, fashion does intermingle well with the intellectual property system. The most important aspect of the fashion industry, the design, is never protected under the law. There are two primary concerns that need to be emphasized in a fashion law practice: protection and exploitation. A fashion attorney will be expected to advise his or her clients on all forms of protecting copyright and trademarks, as well as the newer database and design rights. There are opportunities to serve as corporate counsel, as many of the larger design houses and major retailers have their own in-house legal teams.

Fashion Law in America

To date, there is only one law school that specializes in fashion law: Fordham Law School's Fashion Law Institute. Launched on September 8th, 2010, the Institute is the first of its kind in the world. Founded by fashion law pioneer, Susan Scafidi, the institute incorporates a specialization program for fashion law. To enroll in the program you have to be enrolled in the parent school: Fordham University. Once accepted, you can combine your course work at the Fashion Law Institute to your J.D. or L.L.M. work at Fordham. There are also other schools that are adopting fashion law classes: Southwestern Law School, Columbia Law, New York Law School and Penn Law are slowly rising to accept fashion law as relative course work. However, what do all of these schools have in common…they are on the east coast. west coast law schools have not made the transition to incorporate fashion law in the course catalogs, yet. Do not fret, fashion law is a trillion dollar industry and there is an expectancy of west coast law schools to adopt fashion law classes. The first area predicted to do so: Los Angeles.

Pros and Cons of the Industry

The benefits of working in such a distinctive area of specialization are plenty. Firstly, if you have a passion for fashion than this will be an industry you will be willing to put in the necessary work to be successful. If you abhor knockoffs and believe in originality then you will enjoy fashion law. Secondly, like entertainment law, there are perks for working in this industry. Fashion law offers a backstage pass to a glamorous, star-studded lifestyle. There are opportunities to attend glitzy, upscale parties; wear the latest in designer fashions; and hobnob with all of the beautiful people. A good fashion attorney can earn good money—with emphasis on "earn". The work is not easy. As stated previously in this article, there are a myriad of reasons why it is hard to sue and win cases in the fashion industry. The law is not 100% clear; but, if you are up for the challenge then this should not be a problem for you.

The lack of clarity within fashion law leads to some of its many drawbacks. The cons of this type of work include piles of paperwork, long hours, and high stress…like entertainment law. Some of the biggest current cases, amount to huge pressure for attorneys. “Kardashian Kollection vs. Botkier”; “Louboutin vs. YSL”; “Gucci America vs. Guess”; and the list is never ending. These are some of the most popular brands in the U.S. and their fates rest on the shoulders and skills of their attorneys. A glamorous lifestyle comes with a gloomy price. Also, in the case of a dispute, either on a domestic or an international front; you must have a willingness to travel. The call of duty can come anytime and anywhere.

Knockoffs, Fakes, Imitation: The Biggest Problem in the Industry:

Imitation used to be the highest form of flattery, but not anymore. High-profile style wars between fashion houses and ready-to-wear retailers are becoming increasingly frequent as high-ticket designers serve notice to knock off the knock-offs. Why? Think about it. Remember the time when you were flipping through the magazines and you saw that new Chanel purse that you were just dying to have. Well, that was until you saw the price tag. $500 for a purse! Why not just get the look-a-like for $50; no one will know the difference. It is that $50 that is driving designers and their producers to sue ready-to-wear retailers. That is a loss of -$500 (per purse). One person may say, “It is only $500.” Let's draw a bigger picture. If one hundred people buy knockoffs, retailers receive a total profit of $5000 and the designers lose -$50,000 in potential sales.

Also, designers receive nothing from the knockoffs that are produced. It all goes back to the fake retailers. Although these cases are hard to defend, one high-end retailer recently received an out-of-court settlement from a discount clothing chain over the alleged copying of some of its pieces. Other copycat cases are pending. But as more and more discount retailers and independent entrepreneurs "borrow" expensive designs to create inexpensive and affordable imitations, a good lawyer is fast becoming a must-have accessory for every fashion designer.

Fashion Law Abroad:

While it is not completely unknown in the United States, the fast-paced field of fashion law is much more established in Europe, particularly in the United Kingdom. The Fox Williams Fashion Law Group in London was founded with one purpose in mind, and that is to provide focused legal information to the fashion industry. It is comprised of a cross-departmental team of attorneys who are dedicated to providing their clients within the fashion industry with one-stop service and a high level of expertise. Many of their attorneys practice the sub-specialty of employment law within the fashion industry. Employment problems frequently demand a quick response time, necessitating extensive additional knowledge of workplace regulations. Onside Law and Harbottle & Lewis are two other London-based firms that provide high-quality legal services to select clients in the media, fashion, and entertainment industries.

Summary:

While the role of the fashion attorney is a glamorous one, there is an important caveat. While it's true that fashion attorneys often get invited to good parties, going into this area of practice just because it seems glamorous can be a trap. Fashion law is a very specialized area, and it is important to understand how the entire industry works. It is imperative for fashion attorneys to comprehend the subtleties and nuances of a particular brand and its full marketing strategy and to be able to distinguish the works of different designers.

And after all of that, you get to go shopping.
 

• See Top 10 Reasons Most Law Firms Have No Idea How to Hire and Evaluate Patent Attorneys for more information.