General / Musings Womenswear

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

Business Law Intellectual Property

Can I Use the Photographs? (Part 2)

You’ve hired the photographer and have a written agreement that makes you the owner of all photographs taken.  But if you think nothing could go wrong now, you may not have thought of everything.  Attention must be paid to what is in the photographs themselves.

Through the Viewfinder of an Old Medium Format CameraThe scope of copyright extends to many two and three dimensional designs.  So, if you manufacture useful products made from a fabric that has been lawfully made by, or with the permission of, the design’s creator, then you are entitled to publish photographs of those products.  The key words here are “lawfully made” and “with permission”.  Claims of copyright infringement in fabric designs are a growing problem. But this is not the only danger.

Outdoor urban settings, featuring graffiti, murals, or sculptures, also can produce claims.  Ask Just Cavalli or the US Postal Service.  Just Cavalli is confronting a suit in California by graffiti artists, who claim their work was copied on Just Cavalli’s apparel designs.  And the United States Postal Service has to pay millions to the sculptor of the Korean War Memorial for using a photograph of the sculpture on a stamp.  Both the graffiti and the sculpture were protected by copyright.  Therefore, any use of them without permission in a photograph, including as a cool setting for your fashion, would be infringing.

Props and “set decoration” have also generated litigation.  Rug and quilt patterns, crib mobiles, stuffed animals and dolls can enjoy copyright protection and their designers have brought suits when they have been used without permission in films and advertisements.  So take care that the adorable baby modeling your clothes is not holding a protected toy or other prop that you didn’t create.  Even items such as lamps can be protected by copyright, if they include sculptural forms which could exist independently.

Finally, while you want your photographer to be the next Richard Avedon, it is not a good idea to copy the composition of a famous photograph.  That too can be copyright infringement.

Credit: Helene M. Freeman

See previous post…”Can I Use the Photographs? (Part 1)

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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.

Intellectual Property

Can I Use the Photographs? (Part 1)


You hired the photographer to take pictures of your products, store, showroom or event. You would think that if you paid for the photographs and told the photographer what to shoot, you’d be entitled to use the images however you wanted. But you might be wrong.

Photographs are protected by copyright. Commissioning the creation of photographs and paying the photographer to take them does not give you ownership of the copyright in the photos. Under the copyright law in effect since 1978, the photographer owns the copyright in the photos. In the absence of a written agreement to the contrary, the party hiring the photographer acquires only the prints purchased and a non-exclusive right to use them for a particular purpose.

Photographers are often hired to take photographs, based on a cost estimate, without legal formality. The only writing that may change hands is the photographer’s invoice, which is duly paid, without examination of anything except the price. Pre-printed terms and conditions on the reverse side of the invoice commonly indicate the photographer retains any rights that are not expressly granted and may limit use of the photographs. If you acquire only the right to use the photographs in a catalogue, to cite just one example, you may not be able to use them in advertisements, or on your website, or on packaging, without further permission from the photographer.

And that’s not all. Not only can you not use the photos without the photographer’s consent, but also photos taken at your expense can be licensed by the photographer for use by others. Most professional photographers pursue additional income by licensing their photographic images for use in newspapers, magazines and books. Only a written assignment of copyright or exclusive rights can prevent the photographer from allowing others to use the photographs.

The consequences of not using a written contract to secure ownership of commissioned photographs can be especially severe when the relationship ends. Wal-Mart Stores and the Walton family learned this lesson when the local photographers’ studio that had photographed Wal-Mart and Walton events for over forty years closed. Their photo archives were put up for auction by the photographers’ heirs, along with the copyrights in the images. The Walton family and Wal-Mart Stores found themselves in litigation in an effort to obtain the photo archives for their museum, litigation that is still on-going.

Credit:  Helene M. Freeman

See related posts:

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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.