LEGALLY SPEAKING, IT DEPENDS: Fashion in Film

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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Without fashion, the movie industry would all be making pornos (or at least nudist documentaries). Clothes are so integral to our daily lives that we don't often think about all the different aspects of how they can affect how we do our jobs. That's where I'm supposed to come in. So, though no one would ever call me a clothes horse, I will attempt to delve into the bizarre and fascinating world of fashion and hopefully untangle some legal and business tidbits that could help you follow the pattern of your own fashionable course, avoiding missteps or falling off the runway altogether. Let's see if it fits.

In its simplest form fashion is the stuff we wear. If it is attached to our bodies and isn't medically necessary (or necessary in any real sense) then it is a piece of fashion. Whether it is jeans and a T-shirt or the latest designer dress, a dime store watch or pearl necklace, a rhinestone belt to keep your pants up or a diamond encrusted rope that needs its own insurance policy, someone designed the piece to go on a body and in some way make that body look better. The design was created, the pieces were manufactured, the stores stocked the items and the economy was impacted by the presence of and commerce in fashion.

Fashion, in all its aspects, is a huge industry. And being such lots of parties are out to make a lot of money in it as well as protect the money made with it. So even if you don't know a halter top from a handbag a wrong step in fashion use could impact your project in not so pretty ways.

The film industry knows enough about the importance of fashion to have whole categories of workers that deal with it – costume design, wardrobe, costumers, dressers, fashion designers, etc. Many of them are covered by their own unions (often IATSE) and carry over lots of organizational structure from the well established stage. So they inherit all the business and legal considerations of dealing with unions and guilds and employees in general. But because of the global, public and commercial nature of film and television the normal, manageable concerns are amplified many fold. Let's break down a few of the biggies.

There's a general expectation that when someone creates something artistic the work is immediately protectable by the usual laws. But you might recall from our previous discussions about copyright that not everything falls under the categories protected by that particular set of statutes. One glaring example of what isn't covered is fashion. There is no statutory category that fits.

The crux lies in the fact that clothes are utilitarian. The copyright laws are fashioned in such a way that the more useful a thing is, the harder it is to use copyright to protect it. The thought process lies in common sense. If someone were allowed to copyright a nail, then no one could build a house without paying the copyright owner. That kind of protection would be a debilitating blow to modern society. So things that are useful, necessary or mundane regularly must seek their protections outside of copyright.

And what fits into those descriptions better than clothing? Clothes are useful and necessary to protect from the cold and elements. And pretty much every piece of clothing has the basic shape and function of all others in its class. A t-shirt or tuxedo jacket both have arm, neck and torso holes and conform to the shape of a human upper half. Pretty utilitarian.

Some fashion forward thinkers have tried various ways around this limitation of available protection. Some of the patterns used in the material can be protected by copyright even if the dress they're made into cannot. Occasionally they are successful, but, the search for ways to protect fashion mostly has to find another way to cut the cloth.

One avenue that protects certain fashion houses from vast copying of their works is trade mark law. Remembering our various references to trade marks (I really need to do a proper column on the subject) a mark placed on or near a product is an indicator to the consumer of who manufactured the good, a way of setting expectations of the quality of the product.

Yves Saint Laurent is an example fashion hallmark that has taken this to heart. Their interlinked YSL logo trademark is distinctive and plastered on nearly every item they sell. It is an effective way to discourage rip off, black market goods being passed off as legitimate fare. If a nefarious dealer tries to copy the goods that YSL creates and copies the trade mark as well, then trademark infringement can be used to seize the goods, destroy them and place the false manufacture in dire legal consequences. If, however, the black market good maker decides to rip off only the design and leaves off the logos, then the original goods manufacturer has much less ability to stop them. The distinction and styling of the “legitimate” goods isn't protectable, only the misrepresentation of where it was manufactured. If a customer willingly and knowingly wants to buy “look-alike” goods, there's nothing really to stop them.

Effective use of trade marks to protect a product line is pivotal in the low margin and high cost world of fashion. Many players use it as a tool to protect their creations. And that can often lead to direct conflict between legitimate competitors. Consider the red soled shoe issue at the heart of the Christian Louboutin v. Yves Saint Laurent dispute. A distinctive red sole shoe was created by Louboutin and surprisingly trade marked. (Trademarking a color is difficult, but, not impossible.) When Yves Saint Laurent attempted to paint their own brand of shoes' soles red, blood was spilt and complex and expensive lawsuits were waged. (And you wonder why a pair of shoes can be so expensive.)

Remember that trade mark protection is regional, nation states vary in what is protected within their borders and each application for trademark in each region costs money to acquire and maintain, and you'll see that there's a lot at stake and answers aren't always simple. With international companies selling wares in many different countries the complexity of knowing what is and isn't protected can get tangled.

The complexity and difficulty of protecting manufactured goods is part of the fashion game, a fact that is taken advantage of by the pseudo industries that lurk around the hems and shirt tails of the regular fashion elite. Black market goods are those that boldly ignore the legalities of copying legitimate goods. If caught they can be severely punished and the confiscated wares destroyed. They survive by being either too small to go after or too fast to get caught. Grey market goods are those that skirt those legal protections by avoiding direct infringements (e.g. the logo-less YSL “style” handbag) but still copy the designs of the latest fashion forward styles. They can survive in an open market as long as the customers are aware that they are not getting a legitimate, name brand item. Knockoffs are goods that are directly copying known brand name items at substantially lower costs and quality. Though knockoffs can be part of the grey market they can also be produced by the actual real manufactures as well, taking advantage of the popularity of their name brand lines and selling to the lower cost set often without admitting it.

The whole copying marketplace is a vibrant fashion economy itself and cuts into the sales of the high end fare. It has gotten problematic enough that some manufactures are trying radical steps like shortening their seasons and quickening the timeline to market with the high fashion lines. It is one of the reasons fashion changes so often, not only to keep the high end clients continually buying the latest from the catwalks but also to short circuit the copyists' time on the racks cutting into profits.

What does this have to do with filmmaking? Plenty. Since a clothing manufacturer cannot sit back and collect profits from licensing their goods as some IP owners can, they have to rely on marketing to establish a client base more than most industries. What establishes loyalty and familiarity most is exposure to the public. And where is the biggest public audience looking out there and noting the clothing of the famous and popular? You guessed it. So the relationship with the clothing and film industries are strongly tied.

A fashion designer trying to establish a brand who locks into a job providing unique clothing for a film's stars often has an automatic ticket to the fashion big time. Fashion designers with established names can be wooed to provide their latest garb for the hottest stars both on film and on the red carpet. Especially on the red carpets.

The worldwide instant exposure of fashion worn by stars – and most importantly seen by every press photographer covering the entertainment industry – is an attraction almost too enticing to ignore. At the big events, like the Oscars, fashion designers open their closets and put a pin in everything else trying to get just the right star to choose their clothing for a few hours. The fighting is fierce and the only payment for most of it comes from the answer to the constantly repeated reporter's query, “Who are you wearing?” That seemingly innocuous question and its answer can make or break a designer's season. But it is also rife with potentially missteps and even legal entanglements.

An endorsement of a product in its legal sense is a tying of reputations between the product or service being endorsed and the social capital of the endorser. The bigger the name that likes your product enough to tell people about it, the more sales that product is likely to garner from the followers of the named star. And if the reputation of either party changes prior to or after the endorsement the exchange might not be what was intended. The value to each side of an endorsement is difficult to put a number on and constantly changeable.

Attempts to quantify those values can be set down in contractual terms which lead to paid endorsements where everyone gets and receives exactly what they're contractually committed to. But those kinds of relationships must be handled carefully to not misdirect the public's perception of just how much the endorser really likes the product they're touting. In advertising there is a requirement that a paid endorsement arrangements be expressly stated as such, usually in the fine print.

An intended endorsement is a less formal arrangement, where the endorsee is under no obligation to endorse and isn't paid to do so, even if they may receive some benefit in the hopes of getting the person to like the item enough to talk about it. This is the usual arrangement of the designers loaning dresses to stars for red carpet appearances. The star has no contractual obligation to say how much they like what they're wearing or who made it (though, if they don't it is unlikely they'll have a future offer of such finery extended next time.) When a star states who's designer fare they are wearing the consumer can take that as an intentional statement that the star actually likes what they have on.

An implied endorsement is a bit trickier and could be problematic. That's when no arrangement or expectation of endorsement is precursor to the perceived endorsing event. Sometimes it can be a boon to the unsuspecting designer, like when paparazzi snap photos of a star laden with shopping bags with logos of their brand coming fresh out of the shopping bazaar. But this kind of endorsement can only go so far. There would be issues with the lucky designer licensing the use of those snapshots for an advertising campaign, with its implications that the actor truly endorses their products without checking and getting authorization for using the actors image in those ads.

Where these endorsement arrangements could come into problems in filmmaking are when the story being told conflicts with the commercial obligations of those chosen to tell it. Suppose an actor has an endorsement deal with a shoe brand to the point where contractually they can wear nothing but the designer's shoes. If the part in the movie doesn't fit the type of person who would be wearing those shoes we have a problem. (“Homeless people just don't wear Jimmy Choo's.”) Or more complex would be the scenario where a product integration deal – where a product brand pays the production to be incorporated into the film in a dramatically integrated way – directly conflicts with the brand that an actor's own endorsement contracts require. Lawyers and savvy producers have to be aware of these potential issues and work out ways of tiptoeing through the mine fields.

A writer can set up some of these problems, intentionally or accidentally, by how he or she depicts the story. A film like The Devil Wears Prada immediately required attention to fashion as a key negotiation element as well as a wardrobe cost item. Especially since the characters were praising and more often trashing brands with flourish, the reputational costs were real and needed to be handled delicately.

A writer aware of these issues can fashion a story that stitches just the right mix of rigidity and stretch in order to find the right fit with the story to be told. Going in blindly could lead to you pricking your thumb and dropping a stitch. But the pattern you chose is up to you. As always, it depends.

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