Law…After a Fashion

Richard Hermann

December 1, 2017

Fashion Law, a practice area heretofore buried far below the radar, is emerging as a hot new opportunity for attorneys. Moreover, the fashion industry offers both exceedingly deep pockets and a practice that is dynamic and global in scope.

The Fashion Industry

Fashion is a $375 billion industry in the U.S. and a $1.4 trillion industry globally. It employs more than 300,000 people in the U.S. Moreover, it is experiencing explosive growth both domestically and abroad. Experts all agree that this will continue. Many fashion and apparel companies are experiencing double-digit annual growth while also being afflicted by a large increase in law suits over intellectual property disputes and other matters.

In addition, apparel manufacturers who offshored plants to China and other labor cost advantage Asian nations in the 1980s-2000s are bringing many of them back home as labor costs narrow and the domestic advantages enjoyed by U.S. manufacturers—a huge middle-class market, efficient transportation networks, the growing “Made in America” movement—become more apparent to them.

These factors, along with highly disruptive technological innovations (see below) have contributed to the emergence and growth of fashion law as a distinct practice area.

Fashion Law Defined

A Brief History

Fashion law dates back 2,600+ years to the first sumptuary laws restricting what women could wear in public. Trade restrictions soon followed, supplemented in more recent times by intellectual property laws addressing fashion design components. It also encompasses labor law, going back a century-plus to the era when young women and children sat at sewing machines in New York City’s garment district and were exploited and abused by employers.

However, the notion of a distinct fashion law practice area really emerged only in the 21^st century, first in Europe and now in the U.S.

The first fashion law course was offered in 2008 at Fordham Law School, followed two years later by Fordham’s establishment of the world’s first fashion law academic center, the Fashion Law Institute, under the sponsorship of Diane von Furstenberg and the Council of Fashion Designers of America. Since then, a number of other institutions around the world began offering courses or programs in fashion law, including: Cardozo Law School, New York Law School, and Loyola (Los Angeles) Law School. In recent years, Howard University Law School has sponsored a “Fashion Law Week.”

The New York City Bar Association established a Fashion Law Committee in 2011, and the New York County Lawyer’s Association has a Fashion Law Subcommittee. The Florida Bar also has a Fashion Law Committee. The Federal Bar Association now sponsors a Fashion Law Seminar.

Fashion Law Elements

Intellectual Property (IP) (trademarks, trade dress, trade secrets, copyrights, patents [design patents and utility patents], design piracy, counterfeiting, and fashion licensing)
Business and Commercial Matters (entrepreneurship, finance, contracts, mergers & acquisitions, labor and employment, celebrity endorsements and promotions, marketing and advertising, and retail leasing)
International Trade (global sourcing, import/export, customs, transborder business expansion, and brand protection)
Fashion Law Litigation. For an example of a typical fashion law dispute involving IP—in this case copyright law—see Star Athletica, L.L.C. v. Varsity Brands, Inc., Et Al., 580 U.S. ____ (2017).
Consumer Protection
Antitrust Law and Competition
Labor Law

As Fordham’s Fashion Law Institute puts it, “Fashion law embraces the legal substance of style, including all of the issues that may arise throughout the life of a garment, starting with the designer’s original idea and continuing all the way to the consumer’s closet.”

Technology’s Impact

The massive disruptions of the fashion industry caused by technology are vastly expanding fashion law practice. Fashion law is on the cusp of going in directions and to places where, like the voyages of Star Trek’s starship Enterprise, “no one has gone before.”

The advent and growth of additive manufacturing—3D printing—is the biggest disruption that the fashion industry has ever experienced, and is turning both the industry and fashion law inside out. With 3D-printed wearables entering the market, a whole host of new legal issues are emerging and affecting traditional fashion law practice areas. For example:

Labor and Employment Law. 3D printing will eliminate many traditional fashion manufacturing jobs while at the same time create entirely new ones, including:

Workers who take a design and prepare it for 3D printing;
People who transform metal or other raw materials into 3D printable textiles;
3D printer supervisors and managers; and
Software designers who code clothing designs.
Decisions will have to be made regarding whether employees or independent contractors will fill these new roles. Expect an increase in industry labor and employment law lawsuits.

Intellectual Property. 3D printing makes it much easier to customize clothing so that apparel can be tailored with precision to exact body shapes and sizes. Questions such as the following then arise:

If a purchaser customizes a piece of clothing from a company’s website, who owns the design?
If a customer describes a design to a designer who then creates the software, who owns the design?
If customized clothing arrives and doesn’t fit, who is liable? The software designer, manufacturer, supplier, or end user? Is this false advertising? Who is responsible for what?
Can a customer obtain a refund for a customized product that will be difficult, if not impossible, to resell?

Piracy and Counterfeiting. If a customer buys a 3d-printed dress and then uses her home 3D printer to replicate it, has she then pirated or counterfeited the garment?

As you can see from the examples above, fashion technology opens up whole new legal vistas and opportunities.

Blowing Open Fashion Geography

The U.S. fashion industry has been heavily concentrated in New York City, with Los Angeles a close second and Miami a distant third. 3D printing could potentially “democratize”—geographically speaking—the industry. Entrepreneurial startups are emerging throughout the country as 3D printing expands, improves, and becomes less costly.

Overseas, the fashion industry and fashion law is still heavily concentrated in Paris and Milan, but the technology is also having a democratizing impact on the geography of the practice.

Practitioners

To date, most fashion law practices can be found in fashion and apparel companies.

Law firms first became involved in fashion law under the umbrella of their entertainment practices. Not anymore. Today, fashion law is rapidly becoming a practice area in its own right.

A growing number of large law firms have developed discrete fashion law practices or subspecialties. Increasingly, a number of “boutique” firms are also beginning to focus on this practice area. As the industry expands, there are also opportunities for sole practitioners who wish to concentrate on, or add, fashion law to their portfolios.

In addition, industry trade associations are in good shape financially and increasingly hiring attorneys for a variety of association jobs in legal and JD Advantage arenas.

Coming Up the Fashion Law Learning Curve

Fordham Law School Fashion Law Institute. Fordham’s Fashion Law Institute offers a “Bootcamp” every summer in New York City and San Francisco (the latter jointly sponsored by Levi Strauss). This intensive program is open to law students and practitioners and emphasizes current business and legal issues involving the global fashion industry.

The Bootcamp explores diverse areas affecting the fashion industry, including IP, business and finance, international trade and government regulation, and consumer culture and civil rights. Within these categories, specific topics include the protection of fashion designs, counterfeiting, licensing agreements, fashion financing, garment district zoning, real estate, employment issues from designers to models, consumer protection, sustainability and green fashion, import/export regulations, sumptuary laws, and dress codes.

Program participants receive a Fashion Law Certificate at the end of the Bootcamp.

Loyola Law School Fashion Law Institute Summer Intensive Program. This program focuses on “constructing a brand narrative and all the legal elements necessary to carry that story forward.” The program is designed for students in the fashion industry, practicing lawyers and fashion industry professionals seeking to develop and deepen their understanding of the relationship between the law and the business of fashion. Portions of this 9-day program will be available remotely by live-stream and download.

A certificate of completion is awarded at the program’s graduation ceremony.