“Spring Florals” in Bloom at Fashion Law Institute’s 13th Annual Symposium

(Disclaimer: The views and opinions expressed in this article are those of the speakers and do not necessarily reflect the views or positions of any entities they represent.)

Photo by Henry Dziekan

The annual symposium was held on Friday, as Professor Susan Scafidi, founder and director, reminded us that this was the first in-person seminar since Covid. Although this was my fourth time at the all-day rodeo or, in this case, the floral fest, I wasn’t sure, despite the theme and her pretty pink Gabriela Hearst suit, if everything would be coming up roses.

Photo by Laurel Marcus

“When we put on the masks, we became red and blue states. We’re now pretty close to a state of civil war.” Prof. Scafidi began while also noting that “We are making progress on climate change and are excited about A.I. and what it can do for fashion and the world.” So, like most things, it’s a flower bed with some weeds but a flower bed nonetheless. As usual, there were five panels, and I will briefly cover each for the layman.

Photo by Henry Dziekan

“Cross-pollination: Global Trade Issues, from Diamonds to TikTok” – The first panel featured Caitlyn Walsh, Chanel; Sindy Ding-Voorhees; Kilpatrick Townsend; and Sara Yood, Jewelers Vigilance Committee in person with Sana Ahmed, The Fashion Law Africa Summit; and Ashley Pusey, Maureen Data Systems on Zoom. Michael Busiashvili, OX Fine Jewelry, was the moderator.

Walsh began by highlighting the trade tensions between China and the U.S. post Covid and the U.S. implementing Section 301 as a punitive measure. This tariff requires fashion retail companies that import to raise prices to cover the duty or move their production outside China. According to Walsh, China is the largest apparel exporter, with a 43% share, surpassing the E.U. and India. They also supply textile materials to neighboring countries such as Vietnam and Bangladesh, averaging about 50% of goods.

Pusey spoke of the Restrict Act, which has bipartisan support and is currently in legislation. It seeks to deal with national security issues — unlike the Data Act, it doesn’t try to ban TikTok. She spoke highly of TikTok’s ability to revitalize brands and companies with “viral TikTok fashion moments” such as “vintage” GAP sweatshirts, Aeropostale’s crop tops, and #tinytops and Aerie’s crossover leggings after various TikTok users highlighted them on their platforms.

She is also worried about infringements on 1st Amendment rights should the government “supersede customer rights” and “privacy laws.”

Ding-Voorhees agrees that “TikTok is China’s hero product,” enabling a “wave of nationalism” in which China started purchasing their own brands, including Shein and Temu, after canceling some Western brands such as Dolce & Gabbana due to their perceived Asian slurs. “Sixteen Asian fashion brands showed at London Fashion Week, and Chinese models are emerging.”

She explained how the Chinese are innovators through distribution and marketing techniques such as the live stream sales apps during the pandemic. “There are significant profits so that you will see more direct to consumer from the factory. There’s a soft power battle between two countries in the exchange of tech – we need to give room to brands to help them grow.”

Ahmed spoke of Africa’s emerging role in textiles and the shift from Asia to Africa while pointing out the trade imbalance between China and Africa. Yood highlighted the plight of restricting Russian diamonds – 1/3rd of all melee diamonds, the small stones in pave, halo, and channel settings come from their state-owned mine and are used to fund the war against Ukraine.

It’s not possible to pull them from the market; diamonds are not sorted by country but by quality and weight. Ahmed hopes the upcoming G7 Summit in May will address the lack of blockchain in this arena.

One audience member mentioned the threat of China invading Taiwan, which seems imminent. What happens to U.S. fashion companies that manufacture there? Is there a plan? According to Walsh, 70% of companies have plans to move their manufacturing from China – “It’s a conversation that fashion companies are having,” she stated.

Photo by Henry Dziekan

“Cuttings: Intellectual Property at the U.S. Supreme Court” – Panelists Sidney Kippen with Gucci; Jana Checa Chong; and John Maltbie of Louis Vuitton; with Professor Scafidi as moderator on the left.

This panel is a continuation and will sound familiar if you read the February edition of my report on these topics. VIP Products LLC v Jack Daniels concerns a “Bad Spaniels” squeaky dog toy modeled on the Jack Daniels bottle but with (funny?) dog poop references.

Infringement? Likely to confuse? The lower court initially favored Jack Daniels, which was reversed by the 9th Circuit applying the Rogers test for creative works. The panelists think that Jack Daniels will prevail at the Supreme Court.

A more cut-and-dried case involves Hermès and the MetaBirkins – an artist who calls himself Rothschild sold NFTs for his parody MetaBirkin bags which had nothing to do with the Hermes label. This became the first trademark parody case before the Supreme Court.

The case was quickly deemed to have both infringed and been likely to confuse, and the court ruled Rothschild was to pay the insubstantial $133,000 to Hermès – an amount which Jeff Trexler (Comic Book Legal Defense Fund) quipped “most of you have in your wallets right now.” “Parody is not a magic wand that you can pass over your product and have anything go away,” Maltbie added.

The second part of this panel concerned the photographer Lynn Goldsmith v Andy Warhol’s Foundation for the Visual Arts. Goldsmith set up and took a photo of Prince in 1981, which her agency licensed to Vanity Fair in 1984. The magazine sold the rights after Warhol’s death in 2016 to the Warhol Foundation to colorize and silk screen as a Prince Series, without crediting Goldsmith for artistic expression.

Years later, when Goldsmith found out, she sued for copyright infringement while the Foundation argued fair use and that the photograph was significantly transformed. In Goldsmith’s photo, Prince looked sad and vulnerable — the silkscreen made him look more powerful. Is that enough to claim fair use? Were all images properly licensed? Most people on the panel and in the audience thought the court should find for Goldsmith.

Audience member Deidra Govan brought up the point that costume designers such as herself face similar problems since the studio owns their work rather than the designer, and the result is often “ripped off” for Halloween costumes or toys, etc., with no benefit to the actual creator. Derivative works should be subject to authorization.

Lunch: Edible Arrangements –- a buffet of salads, sliced steak, chicken, and assorted desserts. Between the breakfast buffet with Danish and muffins and the cakes at lunch, I am past my weekly sugar limit!

Photo by Henry Dziekan

“New Varieties: Artificial Intelligence, Technology, and Fashion,” panelists were Walé Oyerinde, Atklas; Kristen Garris, McCarter & English, Caen Dennis, Stroock & Stroock & Lavan; Sydney Kipen, Gucci; as well as Chong and Maltbie from the previous panel. Jeff Trexler on the left serving as moderator.

A video was first shown about Oyerinde’s submission at last week’s N.Y. Fashion Week A.I., which I didn’t even know existed. We weren’t sure what we were looking at, but everything from the sort of space-age desert setting to the Mad Max costume-y fashion to the models (or model, they all looked the same) was A.I. generated.

There was a link to vote for which look should be produced. Oyerinde’s work as a prompt engineer (no, that doesn’t mean he’s always on time) enabled him to arrange the computer code prompts so that the command is correct. It’s an art or a science to match the words to give you precisely what you want, he explained. “It’s a little like setting up a photo… A.I. is a tool that needs the human touch.”

Oyerinde’s interest in fashion came at a young age when he said, “Putting on a great outfit can change your day.” He has a condition that causes a droopy eyelid, and as a kid, he was bullied. He would attract attention with “a great motorcycle jacket” to steer the conversation away from his eye. “It was fascinating to see what I could put together,” he said of the A.I. fashion show.

“Our digital footprint keeps getting increased, so you need digital tools. People meet you online before they meet you in person — we all edit our online photos. It will be a part of what we do, like the internet was. We don’t know how it’s going to look. Web 3 is the next phase of the internet. We didn’t know what was to come.”

Walé Oyerinde

When he added that A.I. creates specific designs – only one-of-one –that brought up the subject of NFTs. Garris explained that Non-Fungible Tokens are the code behind the actual image. “As a factual matter, NFTs are not art; they are code which may be associated with art,” — that’s the argument from Hermès re: MetaBirkins. Dennis mentioned how video games use designer clothing and artwork in the metaverse.

These items must be protected by copyright laws in the A.I. database. “A.I. remembers designs, so who is accountable for something a machine owns? Chat GPT can be helpful for clothing brands to supply data and analytics — it can tell you specific patterns or florals to use. It’s all about what’s put into the database.”

Maltbie mentioned how A.I. is “creating a new legal. It’s not like you’re kicking it into a black box and waiting for the result. There’s a guiding hand in the background. A.I. might not realize what’s copyrighted, such as a Burberry plaid which might be considered proprietary.” Someone in the audience suggested putting a restrictive filter on A.I. as the E.U. has on Chat GPT.

Photo by Henry Dziekan

“Green: New Trends in Legislation and Regulation” panelists were Claire Bing, Maesa; Tiffany Stevens, Jewelers Vigilance Committee; Kenya Wiley, Georgetown University; Julia Solomon Ensor, U.S. Federal Trade Commission (both on Zoom); Jeff Trexler was the moderator.

This panel dealt with Green Guides from the FTC, guiding marketers on how they can make non-deceptive environmental claims.

Surprisingly, they do not address organic, natural, or sustainable. Trexler pointed out that even the word “green” is not used anymore. “You used to see ads with a model standing in front of trees and the word “green,” but after the Green Guide came out, it stopped. It’s seen as misleading.”

Stevens spoke of jewelry such as gemstones “They may come from the ground, but they never go back – they get passed down.” Her trade association deals with consumer protection and harm reduction, as in blood diamonds, diamonds from Russia, and gold mined illegally in the Amazon. “Sustainable doesn’t mean anything anymore — don’t use it. Vanessa Friedman of The New York Times suggests the word ‘responsible.’ We also need to get rid of the word ‘recycled.’”

Bing deals with the cosmetics industry’s interface and the FDA, EPA, and Customs and Border Protection. “Cosmetics are counterfeited more than handbags,” she said. Even though Claire’s makeup was once found to have asbestos-tainted talc in an eyeshadow, you can’t make them recall it. The Modernization of Cosmetics Regulation Act of 2022 (MoCRA) doesn’t define clean, safe, or natural.

Photo by Henry Dziekan

Lastly, we get to “Thorny Problems: Gender-specific Dress Codes and Anti-drag Laws.” Panelists were Ray DeForest/Doris Dear, award-winning drag icon/fashion influencer; David Horowitz, Media Coalition; Hayley Macon, Endeavor; Jeff Trexler (Comic Book Legal Defense Fund) and Susan Scafidi, moderator on the far left.

One side note here: the theme of the entire symposium at first was “Trans” as the word of the year. A few days later, it was changed to a floral theme. (Pushback? Bud Light, anyone?) hmm.

After a brief video intro to “Gurl Talk,” DeForest’s alter ego Dear — a Dame Edna look-a-like’s cable talk show, moderator Prof. Scafidi began with gender dress codes. In 2016, it was ruled unconstitutional to ask men and women to dress gender specifically. “You can have uniforms,” she explained, “but you can’t say who wears what.”

Enter DeForest/Dear dressed from the waist up as a stylish gay man and from the waist down as a slutty woman. Yes, his/their gams are better than mine (they haven’t had children), but I feared what I’d see and purposefully averted my eyes from the half-leg cross position (in a red Herve Leger bandage miniskirt) on the high stool. “I look fabulous. It’s just clothes – even straight men ask me how they can dress more like me.” #ClothingHasNoGender

OY! The backstory: Mother was a Vogue model in the late ’40s and later worked in a bank circa 1971, where she supposedly changed the dress code for women to wear pants.

Cue up all the usual talking points “I’m not chasing children, and I’m not bringing anyone in. Kids are committing suicide because they’re not accepted.” He adds that Shakespeare is where drag began since male characters often play females and cited laws such as Tennessee’s — if a drag queen is near a school, he will go to jail for ten years.

Horowitz spoke of the 50th anniversary of the landmark Miller decision, which modified the definition of obscenity from “utterly without socially redeeming value” to that which “lacks serious literary, artistic, political or scientific value.” There are different categories of obscenity, such as “obscene for minors,” but he said there’s not a lot of prosecution. “Drag shows are having serious political value,” he added. Laws (other than in Kentucky) were not inclusive of movies or Broadway shows.

Remarking on various states such as Texas, where dress code must match your gender, Macon, who represents the talent agency Endeavor said that performers might not want to perform somewhere with restrictive laws. (I guess they won’t be playing Kansas either since I just read that they are the first state to pass a law defining gender as a person’s biological sex at birth).

Macon remarked that the talent agents are diverse and can express themselves in any manner of dress. Trexler spoke of cosplay conventions possibly being affected by anti-drag laws. Pop fandom or geek culture often engages in “gender swap dressing.” They often wear something exposed. This raises the “grooming” issue since these events are associated with kids. “The convention should be safe for kids,” he added.

Will they enforce cosplay dress codes? What about drag queen story hour? “They’re not pornographers or groomers. They’re your neighbors,” said Trexler, who recently won a case in Virginia defending the provocative and banned graphic novel “Gender Queer.” Horowitz thinks there’s a “vocal minority bullying you and trying to pull books out of schools and libraries.”

When DeForest came out in 1974, he was told he would not work again. “You make less money out of the closet, but you’ll be happier,” he said. “All we want is for people to have some tolerance.” An Aristotle quote came immediately to my mind: “Tolerance is the last virtue of a dying society.” Is it tolerance or enforcement?

And with that, 5 p.m. arrives, and time for the indoor Garden Party — complete with on theme Elderflower cocktails. At this point I’m about to push up daisies but am still alive enough to call this day a blooming success.

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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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