Welcome to Designer Hell, No Name

Levi-Strauss-Co-Label

The applied arts, including fashion, stand in service of utility. There is no l’art pour l’art (art for art’s sake) even if you are talented and even if you are French. A useful object made beautiful, fun or even compelling is still something you can use, and things that can be used are objets de commerce, first and foremost. That is one of the reasons, as we have discussed in these postings (and surely will again) that the law treats fashion, jewelry and accessory designs—and related objects such as perfume bottles and lipstick cases—differently from how it treats paintings, sculptures and photographs. All art follows commerce, and artists do not quit their day jobs if they are not commercially successful, but when it comes to fashion, commercial success remains rather the point. If you are a designer and do not believe that, ask your retailers and financial backers if they disagree.

The first and perhaps most personally compelling fact of that distinction between what the law considers design to be versus how it treats fine art is that, although the artist can never lose his name—there was only one artist who could paint a Pablo Picasso and only one artist who could chisel out a Michelangelo—it is possible for a designer to wake up one morning and find that, professionally, his name is no longer his. To his mother, he may always be, “My son, Martin, the designer,” but the clothes bearing his name might be designed by someone else—perhaps someone he does not know, or perhaps even someone whose work he finds indifferent or just plain terrible. Even worse, should he wish to continue designing clothes, he may have to do it under a different name.

The reason for that is because the name is not merely a name; it has become a brand. And brands can be sold, along with the trademarks that represent them, and the goodwill that those trademarks generate and perpetuate. (An artist’s name can also be his brand—but the art market has not yet accepted the idea that, say, Lucian Freud could have sold his name on retirement, for use in connection with fine art by Damien Hirst.) When designers sell their trademarks, therefore, they are, to the fashion world, effectively selling their names.

If the price is right, that may be a great idea. Sometimes, however, regrets follow. In posts to come, we will show what has happened and can yet happen when designers lose control of their own names.

Credit:  Alan Behr


The Blogger Blogged

Alan-Behr-Ralph-Lauren-Purple-Label-NYSocialDiary2015

As everyone knows, lawyers have far too many stellar qualities to enumerate here. We have a sense of humor. (Who can forget, after all, the priceless nugget of wit that goes: “What do you call one hundred lawyers on the bottom of the ocean?” Answer: “A good start.”) We are sure there must be just as many good ones about chiropractors, occupational therapists and entomologists.

And lawyers are media stars. Whenever an attorney is convicted of a felony in the line of duty, doesn’t it always make headlines? Lawyers are also highly respected for their assertiveness, as knows any lawyer whose application to rent an apartment was mysteriously and inexplicably denied.

But who knew that lawyers could also be fashion trend-setters? So it appeared from a blog several months ago, in which the author of this blog was blogged. The post was in the form of a column about accessories worn by attendees at the charity benefit held on the opening night of an antiques fair.

The site is New York Social Diary, in which David Patrick Columbia, combining the roles of Edith Wharton and Henry James for an earlier generation, chronicles the real life moments that those earlier writers drew upon for much of their fiction. The blogger in the guest column was Alison Minton, a friend and queen of New York style, who reports for the site on accessories. In my debut as a fashion icon, you can clearly see the Ralph Lauren necktie and pocket square that were the objects of the author’s attention, along with a fair bit of the Henry Poole bespoke suit that they accented and almost none of my face. As my earlier appearances in New York Social Diary and elsewhere have shown, that omission was no loss at all to the reader. It did, in this instance, force all attention on not who I am but on what I had chosen to wear in the expression of who I am. It demonstrates in pictorial form that what each of us holds as our personal style is both a part of us and an abstraction of us. We are what we wear, but what we wear is also a part of us and a metaphor for how we wish to be perceived.

It also reminds me that, as someone who will on occasion take this forum as a soapbox on which to stand and proclaim what is and is not good style, acting as a fashion authority is uniquely hard work. A theater critic need not act or direct; an art critic is not expected to paint or sculpt; but we all wear clothes. A style critic, therefore, is always in danger of being held accountable for his or her own style success and failures. (And we all have both, to be sure.) This line of work is not for the faint-hearted—but neither is any job in fashion and accessories. Would any of us have it any other way?

Credit: Alan Behr


The World’s Worst Accessory

I used to think that accessories add style in greater proportion to their expense and relative size. Then came three bouts of sciatica (due in part to too much sitting in one place on intercontinental flights in the service of fashion), meniscus surgery on the right knee and the doctor’s assurance that the left knee will soon need it as well. In all cases, I was on a cane until things sorted themselves out; as temporary as those experiences were, they have convinced me that a cane is absolutely the world’s worst accessory. Guys—if you must have a cane, wear a jacket and tie as often as possible and try to keep an erect posture. Doing that at least got me the occasional compliment of looking “distinguished,” which I learned is actually a euphemism for “a man past his prime who manages to keep up appearances.” And don’t ever accept the standard-issue hospital cane. Formerly, a cane was indeed a fashion accessory. When I was young, my parents, who could walk just fine, had an antique cane collection—as a décor item, I suppose. I bought my cane at a midtown Manhattan tobacco shop. The handle is shaped like a mallard’s head. It became known to my small boy as “Daddy Ducky,” and he would take to stomping it around the foyer, saying, “Quack, quack, quack,” until Daddy could gently get Daddy Ducky out of his hands.

Why is a cane so bad? Consider this incident, which is not atypical: I was standing in the Lexington Avenue bus, on my way to work. (When cane-less, I prefer to walk, and quite briskly at that.) An attractive, stylishly dressed woman seated nearby saw me and smiled. The bus came to its next stop. Her accessories defined her style: Her Hermès scarf seemed to carry her up like angels’ wings. As she rose onto her blue Ferragamo pumps, the MK medallion on her handbag swayed, and the air was spiced with her perfume. She smiled at me again with what I could see now were blue, alluring eyes—and politely offered to give up her seat to me and stand until she reached her stop.

Distinguished my ***. If there is indeed a next time for the services of Daddy Ducky, I’ll take cabs.

Credit: Alan Behr


To Plan or Not to Plan

modern and fashion clothes store

In most cases, a new store tenant will require work to be done to make the premises suitable for its purposes. As a rule, a landlord will insist that no work can be done without prior approval. That puts the prospective tenant on the horns of a dilemma while negotiating a lease: if an architect is hired to design the plans while negotiations on the lease are ongoing and the lease is not ultimately signed, time and money invested in the premises will be lost. If the plans are not prepared, however, the opening of the store may be delayed as the landlord goes through the approval process, or worse, the landlord forces the tenant to change the plans. The result: the tenant may not get the store it wants on the date the tenant needs it.

Whether or not to advance the money for plans is always an individual consideration, depending on the relationship with the landlord and the time pressure to open the store.

Even if the tenant prepares the plans and the landlord approves, there is still the issue of getting the approval of the local authorities. Estimating the time that it will take to get approvals is crucial in calculating when the store will open. Without that information, planning for seasonal inventory can be thrown off, with potentially serious business consequences. Ideally, a tenant would have a contingency in every lease for cancellation if the plans are not approved by the authorities. However, it can be difficult to get landlords to agree to that in good measure because of an inability to predict what plans the prospective tenant will submit and what the official reaction to them will be.

However, if the plans are already completed and approved, the municipal authority will likely have someone who would be willing to meet with the tenant’s architect to give an indication of whether there will be problems and to provide an estimate of how long the approval process might take. In some cases, the government representative would also be able to alert the tenant as to any existing problems in the building, especially if the landlord has not been cooperative. It is, therefore, often a good idea to pay a visit to the local building department once plans are completed and approved.

Credit: Steven J. Rabinowitz

Steve is counsel in Phillips Nizer’s Real Estate Law practice.


Those Empty Young Eyes

young elegant fashion model staring into camera

Recently, in American Photo, the photographer Robert Polidori reflected on the things he does not like about fashion photography: “One is the psychological stance. Eyes are the window to the soul, or at least to the psychological state. In the great majority of fashion photography in the past, say, 40 to 50 years, they have zombielike eyes. They look at the viewer-or at the photographer, who is the metaphor for the viewer-to-be—like, ‘I’m not looking at you. I do not value you.’ There’s a sense of denial that runs through it. I always wondered, why does denial sell clothes?”

As both a fashion lawyer and as a photographer, that touched a nerve with me. That empty stare of models in both advertising and editorial shoots has been a staple of fashion photography for about as long as Polidori suggests. It goes back at least as far as the “Sighs and Whispers” lingerie brochure photographed for Bloomingdale’s in 1976 by Guy Bourdin. Immediately controversial, it featured models looking lovely and catatonic in their perfect underwear. (I actually have a copy of that small but groundbreaking piece stored safely somewhere.)

The alternative to the blank eyes is the downright threatening “go thither” stare—as if the beautiful woman is either daring you to admire her and her clothes or pitying you for hoping ever to match her. As your basic straight and clueless guy (adjectives that, I am reliably told, are redundant in context), I also have to ask for what reason any of that sells clothes to women. (If anyone knows, please email us the answer, and we will consider it for future posts.)

I look at the women in fashion publications, and I reflect now on how completely different they are from those in publications aimed at straight and clueless guys. Take any well-done fashion editorial piece and compare it with say, the Playmate of the Month pictorial. Three messages are forcefully presented to women: First, to appeal to men, you do not need to spend all that much on clothes; indeed, if ever there were an illustration of the principle of less is more, here it is. Second, you do not have to be all that thin; the women in men’s magazines illustrate what evolutionary biologists have long been saying: whether they know it or not (probably not), men seek mates who have sufficient body fat to carry a pregnancy to term. The third thing you notice is that it really does pay to smile and to look interested in the guy who is looking you over. (Come on, admit it: your Mom told you that too, right?)

We get it that fashion photos for women’s apparel are not directed at men. Maybe that helps explain why we remain so clueless when it comes to choosing gifts for women. As to what our magazines say back to women, do we really feel comfortable sending the message that, no matter the season or what is showing on the runways, nothing equals the effect of a red thong and a pair of stilettos? And for evening, accessorize that with an engaging smile? I suspect women are no more interested in getting that message than men are prepared to understand why those lean and mean girls in fashion photographs appeal to potential customers. So much about romance will just continue to remain a mystery to us all.

Credit: Alan Behr


Millennials Sure Don’t Shop the Way Their Parents Did

Three Trendy Young Adults Selfie

I was struck by the news that Target’s limited edition Lily Pulitzer collection sold out within hours, after Target took its website off-line in the face of extraordinary demand when the collection went on sale. It is surprising that a sophisticated retailer and a well-known fashion brand did not expect either the demand or that it would manifest itself in a stampede to Target’s website. Can it be that fashion brands and retailers do not appreciate the fundamental shift in consumer behavior of which this is merely the latest manifestation?

As the mother of a daughter who is what the media has taken to calling a millennial, I have had a highly personal view of the change in what was once a fundamental consumer activity: shopping. For me, shopping, which includes searching for luxury brands at bargain prices, is a treasured leisure time activity. It was an activity I used to share with my daughter. The siren call of the mall in Florida, California or wherever else I might be where there was a mall was an essential not-to-be-missed feature of any vacation. And in Manhattan, which has no malls, a stroll on Fifth Avenue or Madison Avenue was a wonderful activity on a nice day.

That stopped when my daughter became a teenager. The one and only shopping trip we have taken in the last 5 years was to find a gown for the prom. That’s not to say that my daughter is not obsessed with fashion or is not an inveterate shopper. She spends more time shopping than I ever did. But the only stores she visits in person are Sephora, to play with cosmetics, the Apple store, to play with gadgets, and thrift shops and vintage stores to find that perfect ugly Christmas sweater or 60’s bargain accessory.

Instead, she shops on-line at all hours of the day and nighBeautiful woman making online shopping using digital tablett, particularly when she is procrastinating to avoid writing papers or completing other school assignments. She shops on her iphone, on her iPad and on her Macbook. She orders everything she is interested in on-line, preferring to try things on in the comfort of her own room, returning what doesn’t work and keeping what does.

For her, on-line shopping is also a highly social and communal activity. She sends links of potential purchases to friends and solicits their opinions. She takes selfies of herself in garments to poll her friends on what she should keep. She follows the brands she likes on social media so that she knows what’s coming and when the sales start.

None of this is new. It has been going on now for years. It is the reason why malls are dying and why some teen retailers have struggled while others have thrived. It has dramatic implications for fashion brands and retailers and important implications for lawyers who serve them. We all must master the internet, social media and the changes in distribution channels that these portend. So bear in mind all: this is the generation that killed the compact disc and record stores and is well on its way to killing iTunes, even though it consumes more music from all over the world than we ever did. It is killing the book store and books (college texts can be rented, ordered on-line and sometimes consumed electronically), although it actually reads more than we do. You’d better get with the “what I want, when I want it, without getting dressed” generation or you’ll soon be a relic of the past. And message to Target and other retailers: if you frustrate your customers and they see your goods as something unattainably dangled out of their reach, you’ve lost them as customers. Millennials do not take frustration well, and the web offers lots of alternatives that are more accommodating. Like Top Shop!

Credit:  Helene M. Freeman


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