Month: March 2016

Underage Models and the Fashion Industry

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Every year, teens and pre-teen girls from all over the world flock to New York in an attempt to break into the fashion industry after being discovered by scouts, individual designers or photographers.[1] The reality for these aspiring models is markedly different from household names like Irina Shayk, Kate Moss or the daughters of Hollywood Celebrities Johnny Depp and Will Smith.

The average model startlingly begins her career between the ages of 13 and 16 and in many cases is housed in apartments with her peers without parental or adult supervision.[2] Further approximately 56 percent of underage models are rarely accompanied by guardians on set, so they are largely left unsupervised and at the mercy of demanding and predatory directors or photographers.[3]

All too often, these young girls look their modeling agency to ensure their well-being, financial or otherwise, but as Sara Ziff points out in a New York Times Opinion, these agencies also contribute to the abuses they experience by looking out solely after their own interests.[4] Modeling agencies which are mostly unlicensed and unregulated management companies unlike talent agencies for actors or other types of entertainers can reap a disproportionate amount of a model’s earnings or take advantage of the models’ inexperience or a language barrier to draft onerous contracts.[5]

The average model’s career will be over by age 20[6], so common sense dictates that the girls who pursue this path should be able to have a back-up plan by going to school to get an education during their modeling careers. However the traditional classroom environment is ill-suited to the demands of the fashion industry. Fittings during New York Fashion Week can take place until the wee hours of the night and it is difficult to see how it – as well as runways or shoots – could be reconciled with a student’s traditional school schedule.[7] It is thus not entirely surprising that the girls are dissuaded from educating themselves and are expected to sacrifice their education for their careers.[8]

Aspiring models journey to New York with the hope that they will live a glamorous lifestyle and be paid handsomely for their work, but the reality is that compensation is not always suitable. According to Kelli Ortega, while models are occasionally a fixed or hourly salary, payment for modeling usually comes in the form of free clothing or accessories from the designer for whom they modeled.[9]

One might reasonably assume that primarily up-and-coming labels orchestrated such a practice and he would be mistaken. At least one designer Marc Jacobs was known to do this.[10] Following complaints from a 17 year old model that she was required to work long hours, Jacobs casually responded that the models were “paid in trade. If they don’t want to work with us, they don’t have to.” In some cases, models will work for the exposure that their work will bring. Neither free gifts nor exposure are substitutes to actual compensation.[11]

Even though these young girls model clothing for adults, they face constant pressure to be as thin as possible in order to get hired and as a matter of fact, 64 percent of models have been asked by their agencies to lose weight.[12] Considering that the average model weighs 23 percent less than the average woman (while also being taller), it is not surprising that models tend to suffer from eating disorders at a rate 10 times greater than the national average.[13]

In an attempt to redress the unacceptable practices within the fashion industry, the Council of Fashion Designers of America and some state governments – in response to the federal government’s slow response- have taken swift action, respectively by releasing guidelines calling for the industry to hire models older than 16 and by amending labour provisions.[14]

New York modified its labour regime so underage models can now be designated Child Performers, thereby granting them some measure of protection. Brands that want to cast these models have to “submit a notice of its intention to use child performers; ensure those employed have valid work permits (the work permits notably require that the models attain satisfactory academic standards or no longer be required to attend school; and that the model receives a medical attestation that she is physically fit to work); adhere to the restricted working hours – including breaks after four hours of work; and keep evidence that the underage models’ pay is entered into their trust funds as stipulated by the law.”[15]

Although several states have passed legislation specifically protecting child models, the policies are not uniform across all states; they tend to offer inconsistent or insufficient protections.[16] Child actors and models are currently exempt from the child labour provisions of the Fair Labor Standards Act (FLSA), so any protection they are entitled to is handled on a state-by-state basis.[17]

Amending the FLSA and using New York’s labour laws as a template could improve these stopgap measures.

New York congresswoman Grace Meng introduced a bill that would establish rules on the number of hours that children can work, salaries and compensation as well as liability for workplace sexual harassment.[18] As welcome as the bill may be, it regrettably does not require that performers and models obtain a medical attestation stating that they are physically fit. I think that this requirement would go a long way toward fighting eating disorders these young girls are more prone to suffer from.

[1] Craig Tepper, “A Model For Success: Why New York Should Change the Classification of Child Models under New York Labor Laws,” (2013) 24:2 N.Y. St. B.A. Ent. Arts & Sports L.J.

[2] Kelli Ortega, “Striking a Pose: Protecting the Welfare of Child Models” (2014) 35:1 Cardozo L.Rev.

[3] The Model Alliance, Comparisons and Reasons for Change, online: < http://modelalliance.org/comparisons-and-reasons-for-change >

[4] Sara Ziff, “Regardless of a Fashion Model’s Age, It’s About Rights”, The New York Times (November 12, 2012), online: < http://www.nytimes.com/roomfordebate/2012/09/13/sweet-16-and-a-runway-model/regardless-of-a-fashion-models-age-its-about-rights >

[5] Annemarie Strassel, “Work it! The New Face of Labor in Fashion” (2014) 61:2 Dissent.

[6] Modelingadvice.com, Fashion Model Size Requirements. online: < http://modelingadvice.com/fashionModelSize.html >

[7] Ortega, supra note 2.

[8] Ibid.

[9] Ibid.

[10] Tepper, supra note 1.

[11] Dimitria Parisis, “The Marc Jacobs/Hailey Hasbrook Conundrum: Working for Trade; A New Vicious Cycle? Scallywag and Vagabond (March 7, 2012), online: < http://scallywagandvagabond.com/2012/03/the-marc-jacobshailey-hasbrook-conundrum-working-for-trade-a-new-vicious-cycle/ >

[12] Ortega, supra note 2.

[13] Ortega, supra note 3.

[14] The Council of Fashion Designers of America, Health Initiative Guidelines Updated by the CFDA, online: < http://cfda.com/the-latest/health-initiative-guidelines-updated-by-the-cfda >

[15] Vogue News, “Is NYFW Breaking Underage Model Law?” (16 February 2016), online: < http://www.vogue.co.uk/news/2016/02/16/underage-models-new-york-fashion-week&gt;

[16] A Department of Labor table illustrates the discrepancy in protection between the states; states like Colorado and Mississippi offer no protection at all, while states like California and New York have robust legislative regimes: < http://www.dol.gov/whd/state/childentertain.htm >

[17] Fair Labor Standards Act 29 U.S. Code § 213 (1938)

[18] Child Performers Protection Act of 2015, H. R. 3383, 114th Cong. (2015)

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