MoMA: Is Fashion Modern?

The Museum of Modern Art (MoMA) is currently hosting the exhibit, “Items: Is Fashion Modern?” So, what is modern? Back in 1944, the MoMA asked, in an exhibition titled, Is Clothing Modern? in the hope of inspiring museumgoers to, “reconsider their relationship with the clothing they wore.” Today, MoMA asks: Is fashion modern? to provoke thought about the world’s relationship with fashion and to examine how and why it is made. In this exhibition, we see fashion born out of creativity and necessity; created by man and machine. The museum’s elevation of both the evening gown and the flip flop illustrates society’s multifaceted relationship with fashion, clothing, and art.

The curators walk you through the history of fashion, using fashion as a lens through which to view and analyze culture and society. Upon entering, I was pleasantly surprised. The galleries, sparsely but carefully filled, teased visitors with vivid colors, sounds, textures, and interactive displays. The exhibit progresses chronologically and also practically, by starting with base layers like undergarments, switching to classics like the little black dress, then working toward wardrobe fundamentals such as pants and later on, accessories.

Underwear starts out not to be a simple thing. Brassieres, stockings, and then jumpsuits pique visitors to contemplate form, function, and aesthetic. Subsequently, the exhibition moves to khakis, trousers, and collared shirts. This casual wear showcase also highlights how pants have evolved for women. With images of a pants-clad Audrey Hepburn in Breakfast at Tiffany’s and Mary Tyler Moore in capris on the Dick Van Dyke Show in the 60’s, the exhibit’s wall labels provide gender-charged commentary on how pant suits became socially acceptable for women.

The exhibit moves forward to a survey of the quintessential little black dress. Just within the exploration of the little black dress, one can see the evolution of fabrics, design, class, and social custom. This collection contains a range of dresses from Christian Dior to Thierry Mugler; starting with a modest Chanel evening dress from 1925 and ending with the controversial, close-fitting Versace cocktail dress worn by Elizabeth Hurley in 1994. The exhibit even highlights the relationship between technology and fashion by including a 3-D printed dress designed via a form of classical mechanics and motion called, kinematics.

Next, fashion is studied as an extension of culture. The collection exalts prints, fabrics, and silhouettes from all over the world, showcasing an anthology of Indian saris, Cuban guayaberas, Ghanian gowns, Brazilian jumpers, and Dashikis inspired by Nigerian prints, yet made right in Harlem.

Flanking one side of the exhibition is a spotlight on men’s suits. The stylistic progression goes from the zoot suit to the power suit, and even a double-breasted pant suit by Ralph Lauren for women. The wide range of tailoring, fabric, and shape is also a reflection on style, age, and class.

After covering each major piece of clothing, the exhibit moves on to highlight accessories. What some may consider superfluous or merely decorative additions, the accessories prove to be staples on their own. This collection looks at show-stopping shoes, handbags, hats, furs, and jewelry. The curators even established a small homage to the famous Hermès Birkin bag and Alexander McQueen’s platform armadillo boots, as worn by Lady Gaga.

But wait: there’s more. The exhibition has small fashion asides where one can find a biker jacket derivative made from polymers and LED lighting, and a textile designed through a computer-programed knitting machine.

“Items: Is Fashion Modern?” is indeed a modern take on fashion. After examining the entire 111 items, it is impossible to walk away uninspired and unprovoked. The curators do an excellent job of covering a wide range of subject matter, addressing the fundamentals of fashion, and examining where fashion is purely aesthetic and less functional, yet nonetheless enthralling and important. The exhibition demonstrates the complexity of fashion, as it can serve as adornment, a reflection of culture, or counterculture. If modern is to reflect the present and recent times, then yes, fashion is modern.

The Museum of Modern Art exhibit, “Items: Is Fashion Modern?” runs through January 28, 2018. https://www.moma.org/calendar/exhibitions/1638

Credit:  Candace R. Arrington

Candace Arrington works in Phillips Nizer’s Intellectual Property, Corporate, Fashion, and Entertainment Law Practices.


Fast Fashion – Slow Justice?

When you hear the term fast fashion, what pops into your head? Trendy designs, hot off the runways of Europe, reinterpreted at prices for all? Affordable, mass-produced clothing? How about labor unrest?

It’s long been true that the garment industry, as with others in which production is outsourced to developing nations, has had its troubles with employment practices at source factories. Those practices continue, particularly in factories in Asia and Eastern Europe. Most production appears to be completed fairly. Recently, however, an unwelcome spotlight has fallen on Zara and its parent company, Inditex. Back in July 2016, the Bravo Tekstil factory in Turkey, which had manufactured clothes for Inditex under the Zara brand, as well for as other fast fashion houses such as Mango and Next, abruptly closed. The former Bravo workers went to court to obtain a ruling that they were entitled to three months’ unpaid wages and severance pay from their former employer. With the employer’s principal having disappeared with the funds that the factory had received for the production of the garments, the workers attempted to have Inditex and the other fashion houses take responsibility for the payment of their lost wages. Although apparently not legally liable, Inditex had announced in 2016 that– together with Mango and Next – it would establish a “hardship fund” to compensate the workers. The three companies have since offered to pay about one quarter of the claims, collectively offering the equivalent in Turkish lira of about US $700,000.

That did not satisfy the former workers, who have focused their efforts on Inditex and the Zara brand in their attempt to recover their money. A number of these workers recently went into Zara stores in Istanbul and inserted hidden tags into merchandise. The tags advised potential purchasers that the people who had made Zara clothes such as those had not been paid for their work. Although it is not clear if the pieces so chosen were made in the shuttered factory, the resulting publicity surely did Zara no favors. Indeed, if there is a party in the wrong, it is the former employer, but that party is out of the picture, and the result is contention over what was intended to be an act of corporate generosity.

Why do these situations exist? In large part, it is due to the fast-fashion business model, which requires production of vast quantities of inexpensive clothes very quickly (as the name implies). Rapid and cheap can be, and has been, accomplished successfully many times, but the exceptions can be horrific. The Rana Plaza building collapse in Bangladesh, which killed over 1,130 garment-factory workers and injured over 2,500 more several years ago, is the most famous case in point.

How can a company as much as half a world away, eager for quick production, trust that its sources pay fairly, honor agreements to workers, provide clean working conditions and—quite literally—assure that the roof will not come down?

Contracts with source factories typically contain clauses prohibiting child labor and forced labor, mandating safe and healthy working conditions—and demanding compliance with often very strictly delineated employment standards and practices. But from far away, that is difficult to enforce, and as anyone who has ever inspected a factory knows, when they are aware that you are coming, things start to look much better—at least as long as you are there.

Earlier this year, a coalition of labor and human rights groups produced a report on transparency in the global garment industry supply chain. The hope is that, by encouraging fashion companies to publish accurate information concerning the factories in which their garments are manufactured, they will undertake to assist further to prevent, address and correct any human rights abuses that may occur there. It remains to be seen as to how successful these new initiatives will be. All that can be certain for now is that the problem will not go away and that counsel for companies seeking sourcing in developing areas should be diligent in working with management to help minimize both business risks and any potential harm to factory workers.

Credit:  Laura E. Longobardi

Laura is counsel to Phillips Nizer’s Litigation Department and Labor & Employment Law and Real Estate Law Practices.


Bikinis and Copyright

The beaches of summer remind us that it is no disrespect for any of us to confess that most people do not look their best in swimwear and that those who do probably would look great in just about anything. Simply, the more the body is revealed, the more the aesthetic duties that are commonly undertaken by fashion are left to uncovered skin. Call it a triumph of artifice over nature, but for most of us, more clothing, rather than less clothing, even on the beach, is often a good thing. Fashion may make the great-looking come across even greater, but it is often a turning point, in the direction of great, for the rest of us in how we present ourselves to the world.

My colleagues and I have been writing and speaking quite a bit this year about the Star Athletica case—the Supreme Court decision that turned cheerleader uniforms into the biggest issue in fashion law in years. (Law is made by the cases actually brought, and this one just happened to be about uniforms worn by cheerleaders, but by its potential impact, you might well imagine the clothes were couture evening wear.) If nothing else, the case reaffirmed (that is, it did not change) the fact that, in the USA, anything functional in fashion cannot be protected by copyright registration (or with a design patent). When applied to swimwear, which typically represents about the minimum that the law allows any of us to wear in public, whatever precious square inches of cloth are involved almost always serve some kind of function. Finding something protectable in what is there can involve examining decorative clasps, closures and add-ons—but minimalism is the essence of swimsuit design, and such design elaborations are quite rare. That leaves for examination whatever small amount of fabric is actually in use.

As we have noted in these pages before, fabric patterns are protectable, and here, Star Athletica may be helpful in providing guidance. The Supreme Court has now told us that we need only look at a fabric pattern laid flat (in reality or imagination) to view it as we would any two-dimensional artwork to determine if it is original enough to be protectable by copyright. The shape into which it is cut—as swim trunks or a bikini, for example—is irrelevant. That is good news for fabric designers. It confirms that it does not matter how little of the design is there to see: if it is original and visible, it is theoretically protectable.

During the 4th of July weekend, I heard a young man compliment another, his tennis partner, on baggy swim trunks and a matching baseball hat—both made of blue cloth filled with an exaggerated white pattern that looked like multiple slash marks. At a pool the day before, a woman was similarly complimented for a black bikini that had small but intricate white designs only on the cloth that just about covered her right hip and left breast. If any of that is original, it may well be protectable.

Does that mean it is getting harder for a fashion company to know if a fabric being offered to it for use in garments is potentially infringing on the rights of others? Does it mean you have to worry about some design that would not fill the space that could be occupied by a chocolate-chip cookie? Unfortunately, that is likely the case. Where that next takes us is for the courts to decide—but not for now. Summer is here and many of those people you will see on the beach are copyright lawyers and judges, putting much of this behind them until fall.

Credit: Alan Behr


More Good Cheer

My partner Helene Freeman has offered her reflections on these pages about the recent Supreme Court opinion in Star Athletica, L. L. C. v. Varsity Brands, Inc., commonly known as the cheerleader uniform case.  Our Fashion Practice held a seminar recently for the industry where Helene provided further thoughts based on her posts, and I provided some practical considerations based on the court’s ruling.  Here is a brief summary.

The key point to remember is that the Supreme Court has greatly simplified how you look at cases of apparel and accessory copyrights and claimed infringement.  Because the case involved fabric patterns, I will limit my discussion to them, but there are broader implications, from belt buckles to furniture.  The bottom line is this: from now on, we will not examine the garment itself, just the surface design.  It no longer matters that, if you take stripes, chevrons and other familiar cheerleader-uniform patterns off the uniform, all you have left is a tennis dress–that is, something with a different function from a cheerleader uniform.  All we need do is look at the pattern on the fabric used to make the dress, as if it were unrolled from a bolt of cloth and laid flat.  In fact, it does not even matter if a cutter snips pieces from the bolt into a recognizable shape of a dress.  It’s the design of the fabric, and just that design, that matters from now on.

That possibly makes even more important the question that the Supreme Court sent back for consideration by the trial court: whether the design that was allegedly copied embodied enough original expression to warrant protection by copyright. The rule is that even modest creativity, when fixed in a creative work, is protectable by copyright.  (All you haiku writers, take heart.) Using neckties from several makers and nations as an example, I showed our conference attendees that original variations to familiar patterns (such as bees and starbursts) could be protectable.  Even if what results is a “thin” copyright, it is still enforceable.

That leads to a follow-on reflection: There being no central database of protected designs, and with fabric designs now being viewed as if standing alone, as some kind of sartorial Ding an sich (a “thing in itself” in Kantian philosophy), if you have a pattern that looks like it might be original, and if you intend to spend time and money using it to make clothing (or other products), now, more than ever, it is important that you seek copyright registration–and that you discuss your options with counsel. Because the cut of the cloth and claimed usefulness (as in, “Those look like the kind of stripes I would find on a cheerleader uniform.”) are now irrelevant for copyright purposes, you will have to undertake your analysis in a field of potential risk beyond that formed by the goods you are making.  Using cheerleader uniforms as an example once more: stripes and chevrons on those uniforms, if upheld as protectable by copyright, could, in theory, be infringed upon not merely by designs on competing uniforms but also by fabric designs on anything that is nonfunctional (such as a purely decorative wall hanging) or functional (such as neckties, carpets and sofas).

That brings us again to our favorite money-saving advice: discuss these issues with knowledgeable counsel before you invest your time and money.  In the law, that ounce of prevention is worth at least a ton of cure.

Credit: Alan Behr


A Big Cheer for Cheerleader Uniforms


The Supreme Court decision in Star Athletica L. L. C. v. Varsity Brands, Inc., No. 15-866 was announced today and the fashion industry can breathe a huge sigh of relief. In fact, the industry, especially accessory businesses, would be justified in popping open the Champagne. Not only did the Court uphold the Sixth Circuit’s judgment that the designs of the cheerleading uniforms were separable, it greatly simplified and expanded the two- and three-dimensional features of useful articles that can qualify for copyright protection.

The opinion holds that the design of a useful article is eligible for copyright protection if the feature can be perceived as a copyrightable two or three-dimensional pictorial, graphic or sculptural design separate from the useful article, on its own or in some other tangible medium, if it can be “imagined” separately from the useful article. Physical separability is not required. The analysis of separability under the statute is a purely conceptual undertaking. Conceptual separability does not require that the remaining part of the useful article, apart from the two and three dimensional design, be either fully functional or even equally useful. The focus of the separability analysis under the copyright statute is on the extracted two- and three-dimensional design and, according to the Court, one need not “imagine a fully functioning useful article without the artistic features.” Nor does it matter, the Court holds, that the artistic feature plays a role in the function of the useful article.

All of the other glosses on conceptual separability that the various appeals courts had previously articulated are swept away. It does not matter that the artistic feature of the design would be marketable separately, so long as it can be imagined as existing. It doesn’t matter that it was conceived originally for the useful purpose to which it was put.

Left for another day is whether the specific designs at issue are copyrightable. That will be the task of the trial court on remand. However, Justice Ginsberg notes in a footnote that the requisite creativity for copyright is extremely low.

Credit: Helene M. Freeman

Here’s a previous post that may be of interest…


NYC Fashion Week and the Created Today, Copied Tomorrow Syndrome

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Pose! Click! Flash! Those are just a few of the sights and sounds of Fashion Week, an exciting time here in New York City. I had the privilege of attending one of the week’s first events–PH5’s Presentation at Bortolami Gallery in Chelsea.

I was awed by the entire experience–stark white walls adorned with giant white balloons set against a row of willowy models in unique and colorful knits and clear plastic above-the-knee boots. As the models stood in mannequin-like pose on small white pedestals, cameras went off at lightning speed and reporters surrounded designer Mijia Zhang and owner Wei Lin. Others, many of them dressed to perfection, crowded into the gallery to see the looks–and look over each other. The energy was high and fast.

After some gawking and conversation over maple water, the onlookers drifted out and the room cleared just as quickly as it had filled up. It was then that I was struck how much the show reminded me of Christmas morning when the kids tear through numerous well-wrapped gifts in literally minutes. After all of the time-consuming preparations in browsing, choosing and wrapping gifts and placing them under the trimmed tree, the excitement is over in a matter of minutes. The same is true of a fashion show.

I thought of all of the hard work Wei, Mijia and their team put into making the excitement of the show. From choosing a brand, to designing the clothes, selecting eye-catching fabrics, obtaining quality manufacturers and selecting the “right” models, space and décor, the coordination is overwhelming.

As a lawyer, my mind, of course, then jumped to the “dark side.” The months of planning to over-in-minutes analogy made me think of how quickly PH5’s designs could be ripped off. We do not have copyright protection for clothing designs in the United States so copying is not only inevitable but also permitted. I have heard many a designer tell me about the frustration they experience when all of the time, effort and money they expend to create a line of clothes can be out the door in minutes when photos of fresh clothing are sent overseas and copied instantly. A few years ago, bills were introduced in Congress to give limited protection to clothing designs but they never made it anywhere. As a result, the copying continues, at least in the U.S., at the same frantic pace as Fashion Week. Some countries like France guard their famous designers by protecting clothing designs.

Some designers with novel fabrics may be luckier than others. For example, PH5 has what the Daily Beast calls “technically sophisticated knits” which can be protected by copyright. Original fabric designs are protected by copyright in the U.S., which does help alleviate the created today, knocked off tomorrow syndrome. Whether a design qualifies for protection is a question to raise with counsel—well enough before the fashion show starts—in order to help gain a measure of legal (and therefore business) advantage over makers of knock-offs.

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Credit: Monica P. McCabe