Fashion Week arrives in New York City every fall, and with it comes the over-the-top glamour of the runways – the world’s hottest designers, the most sought-after models, and many celebrities and journalists. But in addition to the excitement of the runway itself, Fashion Week is evidence of a booming industry on the rise. With revenue of around $196 billion, double that of all the other entertainment industries combined, the fashion industry has ushered forth a new specialty within the law dealing specifically with fashion. To explore this new specialty, Brooklyn Law School held its own Fashion Week this fall.
“We are seeing a change in the way the law is applied to this emerging field because of globalization and the change in the industry itself,” said Professor Claire Kelly ’93, who was instrumental in putting together the week’s events. “It’s important that the Law School be at the forefront of such meaningful discussion.”
A Career with Chanel
BLS Fashion Week opened with “A Sit down with Chanel,” a panel hosted by the Art Law Association (ALA), the Intellectual Property Law Association (IPLA), and the Dennis J. Block Center for International Business Law (IBL). Stephanie Sandler ’02, Director of Skin Care Marketing for Chanel, spoke to a crowded room of students about the ins and outs of working for a high-end fashion company and the types of skills needed to work in a fashion design house.
Sandler started in Chanel’s legal department and eventually moved into a highly influential marketing position. She explained that the analytic skills she developed from her legal education facilitated her success at Chanel. “I would encourage students to be open to a range of opportunities within various fields,” she said, admitting that she never thought she would end up working in a marketing department. “My legal skills opened doors to many more opportunities than I had ever anticipated.”
Sarah Gordon ‘12, ALA’s Program Coordinator who helped organize the event, was inspired by Sandler’s advice. “As an artist myself, I am pursuing a legal career where I can promote and protect artistic and creative interests,” said Gordon. “Her insight into the legal field was invaluable."
Meeting Fashion’s Legal Elite
The second and biggest event of the week, “Representing the Fashion Client,” was co-sponsored by IBL, the International Law Society (ILS), and IPLA. The program was dedicated to exploring fashion’s most pressing legal topics, including intellectual property, licensing, import and customs, international development, and counterfeiting.
A panel discussion moderated by Professor Kelly, featured fashion’s legal elite: Steven R. Gursky ’79, a partner at Olshan Grundman Frome Rosenzweig & Wolosky; Frances P. Hadfield, a co-organizer of the event and an attorney and customs broker with Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt; Guillermo C. Jimenez, an attorney and Professor of International Trade at the Fashion Institute of Technology, and co-editor of Fashion Law: a Guide for Designers, Fashion Executives and Attorneys; Barbara Kolsun, Executive Vice President and General Counsel of Stuart Weitzman; and Karen Ceil Lapidus ’84, Vice President and General Counsel of Loehmann’s.
Jimenez opened the evening’s presentation with an overview of fashion law. He explained that because clothing is generally considered a utilitarian item, as opposed to a “creative” work, for example, copyright law does not shield the cut of the fabric, only the fabric’s graphic design. “The fashion industry lives off of imitation and knocking off,” he said, “but think about it. What if this happened in other areas? What if it were possible for someone to knock off the author Jonathan Franzen’s work? Wouldn’t we find it shocking? But we don’t find it shocking in fashion.”
Kolsun noted that the European Union shelters their designs from imitators if they are considered “novel” and have “individual character.” She suggested the use of design patents as a possible way for designers to protect their brands in the U.S., but pointed out that these patents can sometimes be expensive and difficult to obtain.
Gursky examined the more powerful legal remedies available to brand-name designers when actual counterfeits of their creations enter the marketplace. He described a recent lawsuit in which Fendi sued Filene’s Basement for selling fake Fendi merchandise, and Filene’s Basement settled for $2.5 million. “Making them pay makes them not forget my client and not forget me,” said Gursky. “If you want to stop recidivism in this area, make them write a check.”
Loehmann’s Lapidus, however, had a slightly different view. “Trademark and copyright owners can get a little too aggressive,” she said, “and sue everyone in the chain of title, especially those with deep pockets. I get cease and desist letters all the time.” Lapidus said that her company tries to purchase directly from the manufacturers to ensure that the merchandise is genuine. If they do buy from a third party vendor, the company performs thorough due diligence. Even so, Lapidus said, she would back down at the slightest hint of controversy. “We are indemnified by the vendor,” she said, “so if there is any doubt I will pull the merchandise.”
Hadfield suggested vigilance with respect to tariffs and imports. She explained that those in the fashion business must be aware of the various import classifications and their corresponding duty rate, keeping an eye out for “tariff engineering” opportunities. For instance, a Victoria’s Secret tank top with a built in bra could conceivably qualify as a bra or an article of clothing, and thus qualify for different duty rates. As a parting note of advice, Hadfield told the audience not to forget U.S. regulatory concerns, such as those from the U.S. Department of Fish & Wildlife. “Let’s face it, designers come up with some weird ideas,” she said, invoking laughter from the audience. “Wooden toggles from endangered forests, leopard skin – if there is an animal or plant on these goods, find out what genus and species it is.”
A Discussion with the Authors of Fashion Law
The final event of the week, “Protecting Fashion and Other Designs,” was sponsored by ALA. Students had the rare opportunity to hear from Marc Misthal and George Gottleib, partners at Gottlieb, Rackman & Reisman, P.C., and contributors to Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys (Fairchild 2009).
Gottlieb and Misthal discussed the various intellectual property rights associated with protecting products with a design element, such as furniture, jewelry, tableware, and other consumer-based goods. During the question and answer segment, they commented on the feasibility and wisdom of the Innovative Design Protection and Piracy Prevention Act, a bill that was introduced by Senator Chuck Schumer and is now pending before Congress, and which would provide limited copyright protection to fashion designs, a position Gottlieb and Misthal endorse.
“As practicing attorneys, Gottlieb and Misthal provided important insight into the application of intellectual property law to real-world situations,” said Paul Cossu ’11, ALA’s co-director. “By learning how administrative agencies interpret and apply intellectual property jurisprudence, I now have a better sense as to how I can help someone protect their creative work.”
Fashion Week at the Law School was a great success, bringing many alumni, faculty, and students together for an insightful series of discussions about the legal underpinnings of creating the haute looks that move from runway to rack to closet.
“I was proud to host three terrific events and thrilled with the turnout,” said Professor Kelly. “Clearly we knew we had significant student interest, but we were also gratified by the practitioners and alumni who participated to make the events successful. The discussion amongst the panelist themselves was captivating and the audience engagement added another dimension to the dialogue.”