Over the past few years, a lot of people have been talking about “fashion law.” In my view, this term is really just a shorthand way of referring to the legal/business issues that recur in fashion-related matters. In many ways, this comes as no surprise: a “medical device lawyer,” for example, should understand patent law, products liability, administrative law, and the unique characteristics of the industry in question. In the same way, attorneys representing fashion clients should be knowledgeable about trademark law and the right of publicity, design-protection regimes, advertising and labeling law, statutes and regulations related to sourcing and distribution, issues concerning employees versus independent contractors, the corporate structures most commonly used in the industry, etc. (Of course, attorneys tend to cultivate expertise in particular area of the law, especially as their careers progress, but it’s dangerous to lose sight of the broader legal landscape.) It’s also crucial to have a certain level of familiarity with the mechanics of the fashion industry itself. In my view, “fashion law” doesn’t represent a new discovery as much as an emerging understanding that attorneys who regularly handle fashion-related matters should have a certain level of appreciation of, and sensitivity to, these legal and business issues — before the client ever walks into the room.
How did you get to where you are now?
I’ve been a musician for a long time; perhaps unsurprisingly, I gravitated toward courses in copyright while in law school. I found myself especially intrigued by subject matter that did not fit comfortably into the traditional American copyright regime, like fashion design. (I have a couple of articles coming out in the coming months analyzing how the U.S. IP landscape for fashion design came to be.) I was also drawn to trademark law, perhaps because of its focus on symbols and communication. (My college major was linguistics.) Once I was in practice, fashion caught my eye as an industry in which the issues that interested me most arose quite frequently.
Initially, my focus on fashion was primarily on the legal and business aspects of the industry. But I found myself increasingly fascinated by the sociological aspects of fashion — I came to see it as a sort of paradigm for understanding countless aspects of contemporary culture. I educated myself about fashion theory, design history, and visual-culture studies, and have been fortunate to have the opportunity to explore issues at the nexus of the fashion and law through both my academic research and my teaching positions at NYU. I was thrilled to create a course on fashion history and theory for graduate students in NYU’s “Visual Culture: Costume Studies” program. In short, my focus has gradually expanded from “fashion law” to “fashion and law” — that is, I’m now equally interested in the practical and theoretical ways in which these two components of culture speak to each other.
Is an interest in fashion crucial to work in this area?
To be an effective lawyer, you have to understand the mechanics of your client’s industry. This is true of lawyering in general. When it comes to fashion, you don’t have to maintain a comprehensive mental database of who showed what in what season, but you do have to know who the major players are, what the conventional practices and latest trends are, how common business strategies can be facilitated by — or are in tension with — the law, and the ethos of the segment of the industry in which a client is working. It’s much easier (not to mention more fun) to acquire an understanding of these things if you’re interested in fashion. But it’s also important to remember that your clients are coming to you because they need a lawyer, not another designer. I have enormous respect for fashion designers and great appreciation of beautiful design, but my clients care most about whether I know the law — and how it pertains to their situation. I’ve never had a client ask me if I love fashion.
Do you see the sector expanding or do you think it will remain a fairly niche area of practice?
I’ve said this before, but I think the recognition of “fashion law” as a field has less to do with the number of employment opportunities available, or the nature of those employment opportunities, and more to do with client expectations. Now that more attorneys are advertising their experience with the fashion industry, designers expect greater familiarity with the nuances of the industry than they might have in the past. I doubt most designers would have walked into an attorney’s office twenty years ago and referred to a “diffusion line,” “factoring,” or a “pavé setting,” for example, without immediately providing more information. These days, there is a critical mass of attorneys focusing on fashion, so this level of knowledge has arguably evolved from a “plus” to a requirement for attracting and retaining top fashion clients. Knowing the relevant law remains crucial, of course, but that’s not enough anymore.