Fashion Law Institute Tackles Legal Matters of the Media

Susan Scafidi, Tony Liu, Teri Agins, Lindsey Schuyler – Photos by Laurel Marcus

As Marcel Duchamp said, “Not everyone is an artist, but everyone is a fucking critic.” While attending Fashion Law Institute’s latest seminar, “Unzipped! Law and the Art of Speaking Truth to Fashion” I realized how dangerous criticism can be – at least from a legal aspect.

Founder and Director of Fashion Law Institute Professor Susan Scafidi began by referencing another “F-word — “frivolous,” describing how many people see the fashion world. At issue – what happens in the media if an editor or journalist displeases a brand? Will they be denied access to their shows (not such a big deal in today’s world of live streaming) or, worse yet, threatened with defamation and invasion of privacy claims? How do fashion critics balance this dance between speaking their minds and holding their fire?

The setting

Panelists included Teri Agins, Award-winning fashion journalist and the author of “The End of Fashion” and “Hijacking the Runway;” Lindsey Schuyler and Tony Liu, Co-Founders of the Instagram account Diet Prada; Marco Amorese, Attorney, AMSL Avvocati (Italy); and Jeff Trexler, Interim Director, Comic Book Legal Defense Fund.

Ms. Agins spoke of her 25-year career at the Wall Street Journal. “When I was hired in 1984, there was no fashion. Microsoft and Liz Claiborne were the biggest companies then, so I had to discover this beat. Fashion is visual; however, there were no photos, and the easiest thing for readers to do is stop reading,” she said.

Breakfast for lawyers

Having a financial and investigative background, Agins knew that companies release their earnings every quarter, giving her a clue as to what brands were thriving and which were barely hanging on. “In the early ’90s, I learned that Calvin Klein had a $62M junk bond payment coming due and was probably going to go into bankruptcy at the same time as Vanity Fair featured a special section which made it look like they were doing well.”

After confirmation, she wrote the story: “I had a “Deep Throat” inside Federated Department Stores who told me that Calvin Klein was not doing well,” which did not earn her any points with the brand. “Paul Wilmot, the PR guy, said they were denying me access to their shows and taking me off the press release list – there was no online,” she explained.

“After David Geffen bailed them out, he whispered in my ear – he needed the WSJ to know Calvin Klein was back on track. He invited me to lunch at The Royalton – we weren’t allowed to take free lunches or junkets, so I had arranged to pay the bill. The waiter informed us that the bill was paid twice, so I had to back down,” she chuckled. “I told him I’d get it next time.” She also mentioned that Isaac Mizrahi had no such backing, which is why his line failed.

Prof. Scafidi introduced “the most feared Instagram account in fashion,” none other than Diet Prada. Lindsey Schuyler and Tony Liu started by calling out copies (particularly Prada knockoffs) in the fashion universe, often with humorous memes, and have graduated into doing more investigative work. “It was a funny thing to do at work during that bland era around 2014 – we kept getting unfollowed for the callouts. We’d be like JW Anderson blocked us LOL,” Ms. Schuyler recounted.

“We were the first to use Instagram to call out – we had that insider/outsider status,” said Liu. “We were doing the full circuit. We had to tone things down and say what else we could do with the platform. We don’t have our front-row seats anymore. I’m enjoying this period where we’re not so beholden and can say what we want.”

In November 2018, Dolce & Gabbana sued Diet Prada for what many perceived as a racist ad campaign against Asians. Suffice it to say the suit dragged on for five long years when they hired Marco Amorese, an Italian lawyer, also on this panel.

Susan Scafidi & Teri Agins

In the aftermath of the non-disclosed settlement, Ms. Schuyler said, “We’ve had to shift to a broader audience. We were too niche, too fashiony. We’re walking that line where I now say, ‘Would my dad get this?’ He sees (the now trendy) ripped-up Carhartt pants and says, ‘Those look like the pants I mow my lawn in.’ We now do more investigative pieces asking for brand statements, not just opinion pieces.”

“I would love to be there with you, especially since I hear you’re serving Prosecco,” quipped Attorney Amorese via Zoom. He proceeded to explain the differences between legalese in the US and Europe. “In continental Europe, they pay particular attention to reputation. Truth is not justification as such,” he said. “If there is a message that can be harmful to somebody, the litigant can sue potentially in 27 countries.

This type of abusive litigation can be a significant liability. Defamation can have criminal consequences.” Professor Scafidi added that Karl Lagerfeld had a book banned in France, “The Beauty of the Fall,” after suing for invasion of privacy.

Marco Amorese & Jeff Trexler

By contrast, Jeff Trexler was in the US — in fact, he was upstairs in the law school (but beamed in on Zoom) as he didn’t want to infect anyone with his cold. (Don’t you wish everyone coughing and wheezing on the subway and the street did that?) He recited an abridged version of the First Amendment: “Congress shall make no law restricting freedom of the press protects everyone’s right to speak truth to power although there are certain boundaries designed to protect our democratic core,” he explained.

“There’s fact vs. opinion and actual malice. There’s private vs. public – the internet causes too many problems where you have a worldwide microphone and a chilling effect. A corporation could shoot someone down if it’s a private company, not the government. “He also explained how truth is an absolute defense protected under defamation law in the US as opposed to in other countries where the 1st Amendment doesn’t exist.

Not to get too into the legalese, but there’s something called SLAPP (Strategic Lawsuits Against Public Participation), basically nuisance suits and Anti-SLAPP laws that vary from state to state. Anti-SLAPP (cute acronym) laws are designed to allow someone to get these frivolous lawsuits dismissed at an early juncture – something that doesn’t exist in Europe.

During the Q&A, many interesting topics were brought up, including the dreaded internet “influencer” versus the journalist or person with actual fashion knowledge. “Everyone is an expert now – they show a haul of clothes and tell you what works,” said Agins. Schuyler spoke of Kylie Jenner’s new clothing line KHY – “We just thought, oh, it’s another celeb line, and meanwhile, she’s already on her 2nd drop.”

She also agreed with Agins: “There’s a lot of opinions but not a lot backing it up. There’s no fashion knowledge! All these people talking out of nowhere – we try to get out a point.” Liu added, “There are fewer people there because they love it. Tiktokkers just have an audience. It’s the biggest impact, the biggest splash. People need to tone down their POV, tone down their snark.”

“We’re losing journalism,” agreed Agins. “Cathy Horyn, Robin Givhan, and I all have journalism underpinnings. It’s just spitballs they’re throwing because they get checks.” (and gifts, trips, etc). Trexler brought up how influencers are supposed to announce when something is a paid partnership with a brand to maintain authenticity, but how about when they fake a partnership to get internet clout?

Interestingly, Schuyler pointed out how Vogue and other fashion magazines always received swag (not to mention ads) in beauty products. Still, the FTC has ruled that beauty bloggers must disclose when they receive a product.

Always one to end with a zinger of a question, Professor Scafidi did not disappoint this time. “What story would you love to write (to the journalists), and what law would you like passed (to the lawyers)?”

Agins: “I want to see the factories. I have always wanted to get the story with Zara and Inditex (the parent company) even though they are small potatoes compared to Shein and Fashion Nova.”

Schuyler: “I don’t want to invoke the Swifties who buy 16 versions of every LP she ever put out, but the Swifties are turning. There’s a fast fashion story there with Taylor putting out (expensive but cheaply made) hoodies — there’s not a lot of recourse for bad product.”

Liu is also thinking in a musical vein. “I would love to do something on the Renaissance world tour costumes since I love Beyonce. How are they built – how are they made? I thought I had an in on this, but it never materialized – her team is very protective.”

Amorese would like to see Anti-SLAPP laws in Eastern Europe and more transparency – “a method to understand how fashion is produced.” Trexler would like more constitutional but effective ways to deal with abusive lawsuits and a legal way to get Eras tickets (haha).

Which immediately got me thinking about the one story I’m still chasing. I want to go behind the scenes in the resale industry and see how the sausage gets repackaged and resold and at what cost to the seller. As you should never trust the three letter governmental agencies, the rule extends to high-end resale organizations, which (according to some industry insiders) may or may not be failing.

See how I legally protected myself there?

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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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