Page 16 - Fashion Law

S16 | MONDAY, SEPTEMBER 12, 2016 | Fashion Law
| NYLJ.COM
BY BARBARA KOLSUN AND LEE SPORN
F ashion has achieved the status of a truly global industry, and the rapid growth of fashion law is now catching up to
the challenges facing mass-market fashion brands. Yet law school graduates, even from the nest law schools, come into the work place with little experience in counseling clients. Throughout our careers counseling leading fashion businesses including Michael Kors, Seven for All Mankind, Kate Spade, Cal- vin Klein Jeans, Ralph Lauren, and Stuart Weitzman, we have had to apply the law to the fashion industry. Just as designers must cultivate their unique sense of style, fashion lawyers need a special set of sharp skills to get the right cut.
Big law rms train the best and brightest associates by slotting them into specialty areas in their rst year of practice—M&A, litigation, real estate, etc. And clinics related to criminal law practice and other disciplines have become the norm in law schools across the country. But when it comes to fashion, and other highly creative industries, the focus on the training of lawyers needs a new design.
It’s Not Just IP Anymore
Most lawyers in creative businesses are expected early on to wear more than one hat. We were both trained as IP lawyers. But early on in our careers we had to learn the mechanics of the fashion business in order to provide effective counsel. Working with creative entrepreneurs on tight deadlines creates a need for unique legal expertise. There are dozens of practice areas related to the fashion business that require special- ized legal know-how in order to deal with digital sales, distribution and advertising as well as a host of new technological advances. That’s because in fashion, as in other creative elds, lawyers are now routinely acting as solo in-house lawyers. This is especially true for startups, which have complicated legal issues. But many larger companies now see the need for in-house legal teams that can understand business decisions and assess risk while still allowing for growth.
Certainly fashion companies seek protec- tion of intellectual property, especially brand name, logo and other trademarks. Fashion is an unusually imitative industry. IP law allows a measure of protection, though it is a highly limited protection. Furthermore, the Internet and ecommerce have ooded the
BARBARA KOLSUN and LEE SPORN are fashion industry attorneys who created the FAME Center for fashion, arts, media and entertainment law at the Cardozo School of Law.
Fashion Lawyers
Must Wear Many Hats
market with counterfeits, and the old rules for enforcing trademark rights against ea markets and retail stores selling fakes are no longer enough. The Tiffany v. eBay and Gucci v. Alibaba lawsuits have de ned, and are de ning, the law as it relates to third-party liability. While many law students think that fashion law is synonymous with IP law, in fact, “fashion lawyers” advise on many issues.
Understanding the Business of Fashion
There are a myriad of issues beyond IP that fashion lawyers must understand. For example, they must deal with employment issues (retail employees as well as corpo- rate employees, independent sales repre- sentatives, consultants who may act as the company’s major designers, and international and state laws related to where these employ- ees and others who act as employees live or work). Employment law is a creature of fed- eral, state and even local law. Once a company opens stores in London, Paris and elsewhere there is international law to consider, which is very different from U.S. Law. Training is another matter—and since sales employees come and go, it must be ongoing. Employees must be trained in law-related issues dealing with discrimination, privacy, wage and hour, truth in advertising, and product safety.
Lawyers for fashion companies have the added job of reviewing dress codes. Fashion companies are allowed to establish how their retail employees dress, as a re ection of the brand. These dress codes, however, must not discriminate. A recent Supreme Court case involving a prospective employee at Aber- crombie & Fitch outlines the complicated nature of that balance.
Fashion lawyers touch every part of the business. They negotiate and advise on leases, product and store licenses, import and export and trade issues, product safety, human rights compliance, mergers and acquisitions, adver- tising and marketing, social media, and tax issues. In addition, they negotiate endless agreements such as for advertising campaigns with photographers, models, videographers and shoot location sites.
The CEO and the Legal Counsel
The relationship between a chief executive of cer and the general counsel of any com- pany is necessarily complex. The challenge is to fully integrate the legal function into an entrepreneurial-driven global business envi- ronment. Law students need to understand that fashion is an industry where counsel functions as guardian of the company, and yet must be fully integrated into the business to support its goals while ensuring compli- ance and minimizing potential liability. We recently hosted an event with John Idol, CEO of Michael Kors, at Cardozo Law School for students in our FAME Center to understand this key relationship. In growing his company, Idol told the students, a good general counsel must operate as a business partner and not simply as a person who knows the law. It is key to work together to create a tone from the top down that is focused on compliance and puts processes in place that fully consider all business actions from multiple perspectives.
That is no small task, and the relation-
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