Fashion Law Institute Keeps It Real At 9th Annual Symposium

Part of the audience – all photos Laurel Marcus

It’s that time of the year again! No, I’m not referring to paying taxes – it’s something much less painful and much more informative: Fashion Law Institute’s 9th Annual Symposium which was held last Friday. Head of the Institute Professor Susan Scafidi’s theme this time around was “Fashion. Law. Realness.” There’s a lot to unpack so here’s my disclaimer: I’m not a lawyer, nor do I play one on TV. Objects in mirror may be closer than they appear. Do not try this at home!

Fashion Law Institute 9th Annual Symposium
Ist Panel — Jeff Trexler, Moda Legal; Professor at Fordham; Deborah Farone, Farone Advisors; Staci Zaretsky, Above the Law; Sarah Feingold, First lawyer formerly at Etsy now at Vroom

After Professor Scafidi’s brief introduction to the long day ahead of us including but certainly not limited to whether or not Kim Kardashian West is headed to law school (more on that later) we began with our first panel –“ Legal Realism: Designer’s IP and the Ethics of Attorney Advertising.” This was a deep dive into if and how fashion lawyers should market themselves without confusing or misleading potential and existing clients and without falsely (potentially illegally) representing themselves. Moderator Jeff Trexler, a former tax attorney, admits to being a big proponent of the disclaimer — “I even write ‘this is not legal advice’ to my mom.”

Deborah Farone of Farone Advisors who admittedly loves legal marketing, advises fashion attorneys to look before they leap. “Before you jump into advertising figure out what position you are taking. Why are you doing it?” (Remember to RST: Research, Strategy, Tactics). Research involves asking what your competitors are doing, considering the concerns of your potential clients and figuring out which media will reach them best. Strategy involves figuring out what you want potential clients to know, for example your position in the marketplace and what makes you unique. Other knowledge gleaned: LinkedIn is the most important tool for lawyers; bios on a lawyer’s website are the most read so keep them brief since unfortunately no one takes the time to read anymore. You can be creative in order to stand out –but maybe don’t take your shirt off on YouTube as one prominent (male) attorney who went nameless apparently does. Staci Feingold, First Lawyer at Vroom advises attorney advertisers “If you think it may be shady — it is. Don’t do it.”

Also discussed — should you pose with a Gucci bag, or in front of a store with an Instagram metatag implying that they are your client? What are rights of celebrity privacy (is Kathryn Heigl coming out of the drug store with a Duane Reade bag and then using her to promote the chain of drugstores kosher?) Can you use digital likenesses of famous people or of the deceased without first securing the rights (Tupac’s hologram at a concert will be tied up in court for years)! The answer is basically no to all of these. Finally the KKW $64,000 law school question was addressed. (Apparently she is planning on becoming a lawyer the way that Abraham Lincoln became one called “reading for the bar” where you apprentice at a law firm for a year and then take the “Baby Bar” which determines if you can proceed with your apprenticeship. I would argue that with three kids and the fourth on the way she’s already taken the baby bar!

Fashion Law Institute 9th Annual Symposium
Panel 2 — Mary Kate Brennan, Dentons; Kenneth Anand, YEEZY Apparel; David Stark, Artestar, Keith Haring Foundation; Nick Hawkins, Under Armour; Krina Merchant, Province Brands

Panel 2 concerned “Keeping it Real: Streetwear, Street Art, Cannabis, and the Law of Breaking the Rules.” Streetwear was initially inspired by skate culture, hip hop with a ghetto connection but has evolved into casual, contemporary fashion thanks to designer or more mainstream brand collaborations. Brands such as Supreme, Stussy, Fresh Jive, ALife and others came out of surf and skate culture and were brought to New York in the early “90s. “Streetwear is about breaking rules, pushing boundaries and changing the way fashion is delivered,” said Kenneth Anand, General Counsel of YEEZY. “It’s changing all the time – the minute you put your finger on it, it’s not cool anymore.” What he termed “the casualization of luxury” was cemented with Virgil Abloh going to LVMH in a “massive deal for streetwear, culture, fashion,” — the image of Kanye West and Virgil embracing at the LVMH show further propelled it along. “The men’s shoe department used to be all dress shoes, now sneakers rule. It’s a very elating moment,” he added.

David Stark of Artestar; Keith Haring Foundation remarked that “licensing is a dirty word.” Artists don’t want to do licensing – art was a rarefied world until Haring, a graffiti artist inspired and energized by 70’s and 80’s subway and street art, did it. Collaborations with ‘80s designer Maripol (famous for Madonna’s rubber bracelets and earrings), Raf Simons, Off-White, Robert Mapplethorpe and musician Patti Smith all added to the elevation of streetwear.

“Cannabis is the hottest topic right now,” said Krina Merchant of Province Brands based in Canada, while expounding on the virtues of “high fashion.” “You don’t expect to walk into Barney’s and see a whole CBD department but you do now. Everything from bubble bath to dog treats have been infused since the 2018 Farm Bill legalized hemp, effectively removing it from the Controlled Substances Act and making it an agricultural product. “Hemp has been incorporated into health and beauty products but there’s no THC (the ingredient that gets you high) so it’s completely non psychoactive. Hemp is a lower impact choice than cotton – it has a higher fiber yield, less water is used, no pesticides and it’s more durable than linen,” she argued. Versace and Armani have used hemp in their lines — even Bulgari has a “High Jewelry” line. Nick Hawkins of Under Armour showed us several ads that were used on IG promoting their new streetwear line UA x Palm Angels and AWGE (ASAP Rocky’s line). “It’s a very different look for UA – we’re not just using the sports figures like Lindsey Vonn—we’ve got SRLo with ASAP Rocky.”

Fashion Law Institute 9th Annual Symposium, Angela Byun, Conde Nast, Professor at Fordham; Douriean Fletcher, Jewelry designer for Black Panther; Cindy Levitt, Mad Engine, LIMA; Nicole Piccirillo, Sam Edelman; Lissa Bourjolly, Centric Brands
Panel 3 — Angela Byun, Conde Nast, Professor at Fordham; Douriean Fletcher, Jewelry designer for Black Panther; Cindy Levitt, Mad Engine, LIMA; Nicole Piccirillo, Sam Edelman; Lissa Bourjolly, Centric Brands

Panel 3 explored “Real Deals: Secrets of Effective Licensing and Collaborations.” As Moderator Angela Byun of Conde Nast and Professor of Fashion Licensing at Fordham began “We’re all wearing licensed products.” Douriean Fletcher, the designer behind the “Vibranium” fine jewelry licensed for the film “Black Panther” who was discovered by the film’s costume designer Ruth Carter had “no idea about licensing” when she agreed to it. “As the artist I was more interested in the design,” she said of her striking jewelry with the look of hand crafting which melds contemporary art and African design. “I should have had more infra-structure.”

Nicole Piccirillo who does licensing for Sam Edelman and used to be at Tommy Hilfiger cautioned others: “Do your due diligence now before licensing. You have to be really strategic – will it enhance or dilute my brand? Make sure you get the right partner.” She also cautioned against over-licensing as so many brands tend to do. “I started at Tommy Hilfiger when the brand was extremely hot. We licensed everything under the sun except umbrellas and coffee cups because Tommy despised those categories.” Her caveat: make sure you have a handle on distribution and sales because off-price channels can swoop in and buy items for resale. “We didn’t give licenses permission to do that.”

Cindy Levitt of Mad Engine and Licensing Industry Merchandisers’ Association (LIMA) spoke of Hot Topic’s realization circa 1989 that you couldn’t get rock band tees anywhere except at a show. They became known for these tees as well as becoming the exclusive first outlet for Sponge Bob and Comey the Clown from In Living Color (nothing to do with former FBI director Jim, lol) merch. A funny video on Vogue.com’s Instagram showed an AWOK Air Jordans ad featuring Anna Wintour https://www.youtube.com/watch?v=4YTQTqbIkf0 which was made to test the market and see if the product will sell. Byun said that the job of fashion forecaster has been replaced by influencers – they are the new fashion forecasters now, like it or not.

Panel 4 — Professor Olivier Sylvain, Fordham; Casey O’Connor, Dan Tasse, Stitch Fix; Cristina Del Valle, The Metropolitan Museum of Art; Meryl Bernstein, Hogan Lovells

After Reality Bites (aka lunch) we were right back at it with “Hyperreality: AI, Privacy, and Virtual Retail,” a panel that dealt with the sticky subjects of human versus machine creation. Casey O’Connor of Stitch Fix — the data driven personal styling service – stated that they have 3 million active clients. The infusion of algorithms derived from a questionnaire filled out by each customer helps determine what should be made, quantity and sizing. Besides selling known brands Stitch Fix makes their own “hybrid designs” using customer data and success rate with an item (how often it is kept by the customer rather than sent back).

Dan Tasse also of Stitch Fix explained how the human touch is still needed to oversee the data science. For example, if the data alone indicated that the most popular color is green and the most popular pattern is polka dots, the computer would generate a green polka dotted garment. “The computer thinks it’s good but you look like a clown,” he said. The human must intervene although there are times when humans can’t be trusted. “There’s something called latent sizing,” where people “misreport” their sizes. “You can guess which direction it usually goes,” he quipped. Hybrid design copyright implications were discussed – when does a design infringe on another’s party’s copyright? Machine or animal made prints (you may have seen the “painting elephant” on YouTube or heard of the guy who tried to own the “monkey selfie”) can’t be copyrighted.

Fashion Law Institute  9th Annual Symposium
Panel 5 — Adrienne T. Montes, Gabay & Bowler; Robin Gruber, Chanel; Sara Yood, Jewelers Vigilance Committee; Claire Bing, Vanessa Nadal, Professors of Cosmetics Regulation, Fordham; Aleksandra Petkovic, Shearman & Sterling; Diana Bernal, Retail Consultant

Moving right along is ”Real Possibilities: Recent Developments in Fashion Law,” involved a very long discussion on varied topics beginning with the apparent misunderstanding that Chanel is trying to shut down the secondary market. They’re not according to Robin Gruber who claims they have beef primarily with What Goes Around Comes Around and The Real Real due to trademark infringement with the former and counterfeiting with the latter. Sara Yood of Jeweler’s Vigilance Committee enlightened us on changes within the industry including the removal of the “ten karat floor for gold – you can do 6 karat gold now if you can get it to hold together,” she sniffed. Yood shone bright like a diamond at the news that her job recently made it onto PageSix https://pagesix.com/2019/04/03/leonardo-dicaprio-backed-diamond-company-accused-of-false-advertising/ due to Leonardo DiCaprio’s ownership of a diamond lab which created false advertising. Can lab creations even be called diamonds?

Cosmetics regulations were discussed by Claire Bing and Vanessa Nadal, Professors of Cosmetics Regulations at Fordham. Can the FDA intervene and issue a recall when shampoo reportedly makes one’s hair fall out (depends on the severity) or when talc contains asbestos in the case of an eye shadow at the mall chain Claire’s? One state is so regulated: “California is ‘safer’ than anywhere else,” one of them quipped. Bing mentioned the fact that as more women have been elected to congress than ever before, more cosmetics legislation will be passed — this area had not really seen new legislation since 1938. The viability of the new “smart city new model” such as Hudson Yards and American Dream was discussed during an age when online shopping rules. 2018 saw the “highest amount of retail bankruptcies,” according to Retail Consultant Diana Bernal.

Fashion Law Institute  9th Annual Symposium
Panel 6 — Professor Susan Scafidi; Lindsey Schuyler, Tony Liu, Diet Prada, Chris Giglio, HL Strategic Solutions; Grace Sacro, Brittni Saunders, NYC Commission on Human Rights

The sixth, final and perhaps one of the most interesting topics for the layman was entitled “Really? Dolce & Gabbana, Galliano, and Other Unfashionable Faux Pas.” This panel dealt with call-out culture and featured the mysterious dynamic duo behind the Diet Prada Instagram account. Moderator Professor Scafidi opened with “We can train people to walk in 12 inch heels but we can’t train people not to step in it!” Alrighty, then. We are all aware of the “many, many faux pas” of fashion brands from Chanel’s “Satanic Breasts” (in 1994 Karl Lagerfeld inadvertently used verses from the Koran on a garment worn on the runway by Claudia Schiffer) https://www.nytimes.com/1994/01/21/style/chronicle-933805.html to Marc Jacobs’ use of pastel dredlocks, to a Girbaud “last supper” advert, to the recent brouhaha over the Gucci “black face” balaclava.

The recently unmasked twosome behind Diet Prada: Lindsey Schuyler and Tony Liu who met when they worked together at an accessories design company. “It started as a joke with some of our friends,” said Schuyler of their IG account chronicling designer-to-designer copies. “Then we got a lot of fashion industry followers and it kind of exploded” thanks to Instagram’s “huge platform.” Does their speaking up feel weightier now that they have 1.3 million followers? “Someone’s being taken advantage of – it does feel weightier but also inspiring. The heavy hitters of the industry aren’t going to notice unless we are amplifiers.” Schuyler and Liu admit to “bickering like brother and sister” on occasion while Liu sees the account as a way to make his mark. “As a gay Asian growing up in a white heterosexual world I never really advocated for myself.”

Chris Giglio of HL Strategic Solutions presented options for the unrelenting mea culpa tours which designers often go on, either willingly or unwillingly. “There’s no one answer for what to do if you make a mistake,” he said. It will depend on the public’s “B.S. meter” to decide who lives and who dies. “We sit at the nexus of commerce and culture. It’s a cool but volatile place. People will forgive you once but not three or four times,” he said alluding to the Dolce & Gabbana’s continuous social media lash-outs including an uncomfortably staged press conference which resembled a hostage video. Should you, in fact, do anything? “Years ago I would tell people to sit tight but now not as much,” he counseled.

Racial discrimination was discussed by Grace Sacro and Brittny Saunders, both of the New York City Commission on Human Rights, advocates for African American employees to be able to wear their “natural hair” at their place of employment and other social justice issues.

Fashion Law Institute  9th Annual Symposium, Susan Scafidi
Susan Scafidi

And just like that it was time for Dessert of the Real – a well earned happy hour for the newly brought up to speed attendees. Kudos to Professor Scafidi and the Fashion Law Institute on what has become, for many legal fashion eagles, an annual rite of spring.

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Laurel Marcus
Laurel Marcus

OG journo major who thought Strunk & White's "The Elements of Style" was a fashion guide. Desktop comedienne -- the world of fashion gives me no shortage of material.

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