THE US FEDERAL JUDICIARY has frequently displayed a dismissive attitude toward ‘fashion,’ while simultaneously recognising the great economic importance of ‘clothing.’ As ‘fashion’ was, from the creation of the united States until, arguably, the late 1960s, associated primarily with the female sex, while judges during this time period were almost exclusively male, one naturally wonders whether the power dynamics of gender shaped the development of the law pertaining to fashion. There is good reason to believe that this has indeed been the case.

Fashion has been ‘a female thing’ for a very long time in the west; not since the eighteenth century has any significant number of western men dressed more elaborately than their female counterparts.¹ The current expectation that men – and, nowadays, women who wish to appear ‘serious’ – will trivialise and denigrate fashion is so entrenched in our collective consciousness² that we are hardly aware of the cultural relativism of it all. Indeed, even by the mid-nineteenth century (in a country that had never had a ‘court culture’ where fashion was de rigueur for both men and women), one US federal judge saw fit to instruct a jury deciding a patent case:

New inventions in regard to some trifling article of dress, such as hoops, or crinolines, or, in the language of Judge Story, ‘a new invention to poison people,’ are not patentable. The one is frivolous, the other mischievous.³

Yet during this same period, judges on the federal bench waxed poetic about the incredible technological advancements in the production of clothing, made possible by innovations like Eli Whitney’s cotton gin:

There are circumstances within the knowledge of all mankind, which prove the originality of this invention more satisfactorily to the mind than the direct testimony of a host of witnesses. […] The machine of which Mr. Whitney claims the invention, so facilitates the preparation of [cotton] for use, that the cultivation of it has suddenly become an object of infinitely greater importance than that of the other species ever can be. Is it then to be imagined that if this machine had been before discovered, the use of it would ever have been lost or could have been confined to any tract of country left unexplored by commercial enterprise?⁴

This contrast can be observed in other disputes. For example, in one 1861 decision, a federal judge lamented the time and money expended on litigation between two women over the alleged copyright infringement of a work entitled ‘The ladies’ chart for cutting dresses and basques for ladies, and coats, jackets, etc., for boys.’ The court wrote: ‘It is to be regretted that under the impulse of their heated passions and intemperate zeal, these excited females have put themselves to unnecessary trouble and expense in taking depositions […]’⁵

Yet in a different, more ‘manly’ dispute in 1851, another judge deemed it a worthwhile use of the judiciary’s and the parties’ resources to order second trial – an enormously burdensome undertaking – in a case where the lower-court judge had not clearly conveyed to the first jury that the defendants (who had allegedly misrepresented themselves as valets for a hotel in order to make a living transporting luggage) ‘must not dress themselves in colours, and adopt and wear symbols, which belong to others.’⁶ These decisions suggest that nineteenth century american judges saw fit to intervene in apparel-related disputes where the subject matter was sufficiently ‘utilitarian’ to fall within the realm of ‘men’s work.’ Where merely aesthetic – i.e. ‘female’ – aspects of fashion were at issue, courts’ reactions ranged from mere expressions of condescension⁷ to outright refusals to exercise their power to intervene. The use of fashion for less visibly utilitarian ends, like personal expression,⁸ was either imperceptible to, or ignored by, judges – and this has remained true well into the twentieth century.

In the 1918 case of International News Service v. Associated Press,⁹ the US Supreme Court bypassed the strictures of copyright law in order to enjoin one news organisation from free-riding on the information collection and dissemination efforts of another. Yet just one decade later, in Cheney Bros. v. Doris Silk Corp.,¹⁰ an appellate court refused to extend the Supreme Court’s reasoning to protect ‘a manufacturer of silks, which puts out each season many new patterns, designed to attract purchasers by their novelty and beauty’ in its suit against a competitor who had made a business out of knocking off the plaintiff’s popular designs. The plaintiff quite reasonably attempted to invoke the Supreme Court’s reasoning in INS v. AP, but the appellate court did not bite:

The plaintiff asks for protection only during the season, and needs no more, for the designs are all ephemeral. It seeks in this way to disguise the extent of the proposed innovation, and to persuade us that, if we interfere only a little, the solecism, if there be one, may be pardonable. [But that] is not the law. In the absence of some recognised right at common law, or under the statutes […] a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.¹¹

The analogy from the news case to the fashion case was and continues to be obvious, yet the federal courts were willing to provide relief for the plaintiff only in the former. While alternative explanations for the divergent results are possible,¹² it is also possible that the men wielding the power of the federal judiciary simply saw the collection and distribution of news as a more valuable-cum-respectable- cum-manly endeavour than the design and manufacture of silk patterns for ‘ladies’ dresses. (The Cheney Bros. decision served as a catalyst for lobbying efforts directed at Congress to obtain copyright protection for fashion designs – an endeavour whose multi-decade failure raises its own questions about gender-power dynamics.)

Even after the Sexual Revolution in the US in the late 1960s, when the importance of apparel – and even fashion – went ‘mainstream,’ some judges continued to treat clothing-related cases as unworthy of their time. For example, in the 1974 case of Rappaport v. Katz, plaintiff Doreen Rappaport challenged on constitutional grounds guidelines of the New York City Clerk prescribing required dress for couples getting married.¹³ The plaintiff ‘wished to wear pants to her wedding but was told [by the City Clerk] to present herself in a skirt’, prompting her to bring suit because, in her words, ‘I find dressing in pants […] protects me from much of the sex-role stereotyping to which women continue to be subjected both professionally and socially.’¹⁴ The male judge assigned to the case would have nothing to do with it, writing that ‘federal judges have too much to do to become involved in this type of dispute’¹⁵  The court did not acknowledge the tension between this dismissive passage and other portions of the opinion, like the following paragraph:

The City Clerk draws attention to the word ‘solemnise’ repeated in the statute from which he infers a duty to conduct a solemn, not a frivolous occasion. […] He asserts that the City of New York has spent hundreds of thousands of dollars in decorating and maintaining appropriately, separate chapels for such solemnisations in each of the five boroughs of the City, in keeping with the solemnity attached to the nature of the marriage obligations publicly assumed by every couple in said chapels. During the last six decades, he says, couples who sought the solemnisation service of the City Clerk invariably appeared in appropriate clothes for this single most important event in their lives.¹⁶

Put differently, while the attire to be worn at a wedding ceremony was indeed a ‘solemn’ matter, Ms. Rappaport’s desire to select her own attire for the occasion, although motivated by ideological and political concerns, was nevertheless ‘frivolous.’

More recently, an appellate court characterised the Rappaport case as posing the question, ‘Does a bride have a right founded in the constitutional notion of liberty to wear slacks to her city-hall marriage?’¹⁷ The court, comparing Rappaport to another case in which a plaintiff had sued for constitutional violations over a public employer’s broken promise ‘to give its employees fresh Danish pastry during their coffee breaks,’ described Rappaport as belonging to a class of cases ‘not [where] the harms […] are small but [where, even so,] there is no actionable wrong.’¹⁸ It is quite remarkable for a court to state that even where it perceives a wrong that should be redressed, it will not intervene – not because of procedural flaws or other legal obstacles, but just because.

Of course, in the new millennium, fashion can no longer be credibly characterised as a mere hobby for aristocratic women with little else to do; fashion is now a multi-billion-dollar industry with countless stakeholders. But even where the economic stakes in fashion-related cases are too great for a court to simply ‘opt out,’ as many of the above-mentioned judges did, federal judges presiding over such cases still make their distaste for the subject matter clear (even, and maybe especially, female judges). Consider Gucci America, Inc. v. Guess?, Inc.,¹⁹ a recent lawsuit over Guess’s alleged conspiracy to ‘gucci-fy’ its products in order to boost business by free-riding on the luxury brand’s consumer goodwill.²⁰ Judge Shira Sheindlin’s lengthy 2012 decision disposing of the case, partly in Gucci’s favour, concluded with this withering passage:

Over the past three years, the parties have put in countless hours and spent untold sums of money, all in the service of fashion – what Oscar Wilde aptly called ‘a form of ugliness so intolerable that we have to alter it every six months.’ With the instant disputes now resolved, and with Gucci’s entitlement to the relief noted above, it is my hope that this ugliness will be limited to the runway and shopping floor, rather than spilling over into the courts.²¹

The message, of course, was that fashion – whose immense economic and social importance no reasonable person could now ignore or dispute – continues to be somehow unworthy of the federal courts’ time. It is true that federal judges, who must manage a docket consisting of both criminal and civil cases, tend to give priority to the former, with only rare exceptions. Yet even limiting our examination to federal civil cases, one does not often see passages like Judge Scheindlin’s excoriation in decisions outside the realm of fashion, especially in disputes complex enough to warrant a one hundred plus-page opinion.

In short, it seems that fashion’s inferior status as ‘a female thing’ continues to haunt its treatment in litigation, with inevitable, if unquantifiable, effects on the outcome of disputes of great consequence for the parties – and, by extension, for the evolution of US law more generally. While conclusions must be guarded pending further study of this phenomenon, it is clear that the gender-power dynamics we often try to relegate to another era are alive and well, at least in the cases described. Litigants – and advocates of social equality – beware!

Charles Colman is a specialist in the emerging field of ‘fashion law’ and an Assistant Professor of Law at the William S. Richardson School of Law, University of Hawai’i-Mānoa.

This article was originally published in Vestoj: On Power.

1. See P McNeil and V Karaminas, (eds.), The Men’s Fashion Reader, Berg, Oxford 2009, pp.147-48. ‘In The Empire of Fashion, [Gilles] Lipovetsky writes that from the fourteenth to the eighteenth century, both sexes were equally extravagant in fashion and ornamentation. Even up until the seventeenth century men’s fashion was more playful than women’s; it was not until the “great renunciation” of the late eighteenth century that the masculine mode was eclipsed by the feminine.’ Citing G Lipovetsky, Empire of Fashion: Dressing Modern Democracy, Princeton university Press, Princeton, 1994, pp.26-27. See also Ibid, p.148 ‘Simply put, it has been claimed that after the decline in court societies, men dressed for comfort and function rather than fashionability and style.’ Citing J Craik, The Face of Fashion: Cultural Studies in Fashion, Routledge, London, 1994. ↩

2. See A Hollander, Sex and Suits, Knopf, New York, p.48. ‘Public attention has [long] been riveted on the feminine scheme of varying the same idea in different ways through time. This has been what is meant by “Fashion” when it is despised as woman’s business.’ ↩

3. Page v. Ferry, 18 F. Cas. 979, 982. C.C.E.D. Mich. 1857. Wilkins, J. ↩

4. Motte v. Bennett, 17 F. Cas. 909, 916-17. C.C.D.S.C. 1849. This passage first appeared in an 1807 judicial opinion in the case of Whitney v. Fort, now lost, but verified (and expounded upon) by a judge in Whitney v. Carter, 29 F. Cas. 1070, 1071-72. C.C.D. ga. 1810. ↩

5. Drury v. Ewing, 7 F. Cas. 1113, 1117. C.C.S.D. Oh. 1862. ↩

6. Marsh v. Billings, 61 Mass. 322, 332 (1851). Note that this was actually a state-court case; it was not until decades later that trademark and ‘trade dress’ litigation could be brought in the federal courts. ↩

7. See, e.g., Good Form Mfg. Co. v. White, 160 F. 661, 662. 2d Cir. 1908. Patented device for keeping necktie in place with standing collar described by court as an ‘invention . . . of minor importance, having for its object the improvement in appearance and fit of an article of wearing apparel.’ ↩

8. P McNeil and V Karaminas, eds., The Men’s Fashion Reader, Berg, Oxford, 2009, p.9. ‘Feminist theory can be used to understand the meaning of style politics – using “rituals of consumption in dress, cosmetics, hairstyle and gesture to bend the norms ordained by the market and to flout family and other authority.”’ Quoting V de Grazia, ‘Introduction,’ in The Sex of Things: Gender and Consumption in Historical Perspective, ed. V de Grazia and E Furlough, University of California Press, Berkeley, 1966, p.7.  ↩

9. 248 U.S. 215. 1918 ↩

10. 35 F.2d 279. 2d Cir. 1929 ↩

11. Ibid. pp.279-80 ↩

12. Several passages from the Second Circuit panel’s decision in Cheney Bros. suggest that it might have decided INS v. AP differently, if it had adjudicated the earlier case. Further, this time period is associated with the emerging recognition of the limitations of courts to create ‘federal common law’ – a notion formalised by the Supreme Court eight years later, in Erie Railroad Co. v. Tompkins, 304 U.S. 64. 1938 ↩

13. 380 F. Supp. 808. S.D.N.Y. 1974. ↩

14. Ibid. p.809 ↩

15. Ibid. p.812. It should be noted that the judge did attempt to bolster his ruling with federalism arguments. ↩

16. Ibid. pp.810-11 ↩

17. Hessel v. O’Hearn, 977 F.2d 299, 304. 7th Cir. 1992  ↩

18. Ibid. ↩

19. 9 Civ. 4373 (SAS), 2012 U.S. Dist. LEXIS 84232. S.D.N.Y. Jun. 18, 2012. J Scheindlin. ↩

20. See discussion in C Colman, ‘Handbags at Dawn,’ Intellectual Property Magazine, Jul. 13, 2012, http://lawoffashion.com/blog/story/07/13/2012/145. ↩

21. Gucci America, 2012. U.S. Dist. LEXIS 84232, p.117 ↩

ON THE TUESDAY BEFORE New York Fashion Week, two months before the U.S. presidential election, American designers demonstrated their political zeal with swag. The ‘Made For History’ collection, which debuted at a runway fundraiser, included a bandana by Thakoon, a pouch by Brett Heyman and T-shirts by Marc Jacobs, Joseph Altuzarra and Tory Burch. These favoured, predictably, Hillary Clinton. ‘Unlike the Republican candidate’s unspeakably hideous ties, our collection is made in America by union workers,’ announced host Anna Wintour.¹ Two more Clinton fundraisers would be held before the week wrapped. ‘I attended all these events because being a Democrat is always fashionable,’ wrote the socialite journalist Derek Blasberg.² 

Before there was Clinton swag, there was Obama swag. Before there was Obama swag, there was Kerry swag. (Donald Trump has swag, but no designer names are attached.) That the fashion industry leans to the left is no surprise considering that seventy per cent of people currently favour Clinton in New York City, where the U.S. fashion industry is also based.³ All the same, it’s worth asking: if being a Democrat is always fashionable, whom are these items really trying to convince? Do we purchase Diane von Furstenberg’s Hillary Clinton T-shirt to show solidarity, or to build our personal brands? Do designers create them because they will change hearts and minds – or to reassure themselves that their industry has a role to play in their nation’s critical decisions?

For an industry whose existence hinges on newness and excitement, an election year is a threat. Hemlines are not important when millions might lose healthcare coverage. Front row quotes appear meaningless when the future of foreign policy is being debated. Collections like ‘Made For History’ are meant to encourage political engagement among consumers – but they also assert the fashion industry’s relevancy at a time when it is in jeopardy.

Fashion is especially vulnerable to accusations of frivolity during moments of social turmoil. Consider Marc Jacobs’ recent use of dreadlocks on a cast of predominantly white models, the farthest-reaching political message of the most recent New York Fashion Week (and, ironically, per Jacobs, an accidental one). The show ignited outrage over cultural appropriation, but pundits also criticised the backlash as a distraction. ‘Don’t Rage Over Dreadlocks While African Americans Are Dying in the Streets,’ read the headline of an op-ed by Columbia University professor John McWhorter. ‘Republicans are trying to deny black people the vote nationwide… A War on Drugs has destroyed black communities left and right… Amidst all of that – hair????????’⁴

The industry has not historically positioned itself as an authority on serious political matters. Like many for-profit enterprises, fashion labels benefit from neutrality – Oscar de la Renta for example famously dressed First Ladies from Kennedy to Reagan to Clinton. Similarly, retailers discourage controversy. Katharine Hamnett, a British designer known for T-shirts with slogans like ‘SAVE THE WORLD’ and ‘WORLDWIDE NUCLEAR BAN,’ recalls trying to sell her creations in the early 1980s: ‘American buyers were rushing into my showroom, willing to spend their money. They took one look at the T-shirts, got a horrified look in their eyes, spun around on their heel and left.’⁵ Similarly, New York label Pyer Moss’ spring/summer 2016 collection, which featured slogans from the Black Lives Matter movement, reportedly cost the brand $120,000 worth of business, according to the designer,⁶ though the collection was covered by dozens of media outlets and garnered praise from celebrities including Usher and Erykah Badu.

Sartorial Sloganeering has a Catch 22: when a message is radical enough to provoke, its garment is incompatible with commercial distribution. When a garment is a commercial success, its message fades. Hamnett’s T-shirts, while initially controversial, eventually became popular among celebrities and musicians, and were knocked off by everyone from other designers to the pro-life movement, who appropriated her ‘CHOOSE LIFE’ message, initially created to discourage drug abuse and suicide, to oppose abortion.

It’s telling that, in creating a political fashion statement, the right has borrowed from the left. Though conservatives have more recently developed aesthetic languages of their own – consider the gore of anti-abortion billboards – movements like Black Power, Women’s Liberation and anti-Vietnam war protests were some of the first to harness self-presentation to communicate via mass media. In America, the aesthetics of protest are historically linked to progressive causes.

This does not mean that the values Donald Trump represents are absent from contemporary fashion design. Clothing that promotes gender conformity, and which bolsters existing power structures by glamourising wealth and whiteness, is so ubiquitous that you sometimes forget about it until it bumps awkwardly against a new attempt at ‘wokeness.’ This is as true internationally as it is in the U.S. Consider Chanel’s spring/summer 2015 show, for which Karl Lagerfeld chose the theme of a feminist protest. Models brandished quilted-CC loudspeakers and signs inscribed with a mix of second-wave mantras (‘History is Herstory’), cute one-liners (‘Make fashion not war’) and gibberish (‘Tweed is better than Tweet’). A brooch from the collection featured an image of the house’s founder, Coco Chanel, with the slogan ‘Feministe mais Feminine.’ The show omitted Chanel’s other political history as a Nazi sympathiser, as well as Lagerfeld’s 2009 assertion the house’s founder ‘was never ugly enough’ to be a feminist.⁷ 

Chanel’s brand was recently estimated to be worth $7.2 billion,⁸ yet it positions itself not as the product of corporate market research, but of individual conviction and creative genius. With the number of seasons, collections and fashion weeks increasing, political statements benefit brands by attracting media coverage. But they also position fashion as more art than industry, all the better to smooth friction between progressive values and capitalist profit motive.

Might clothing actually ‘SAVE THE WORLD’? ‘T-shirts are great, but they don’t change anything, really,’ Hamnett said last year. ‘Unless you take constructive action in other areas of your life, just wearing a T-shirt actually isn’t going to do anything.’⁹ 

Alice Hines is a writer living in New York City.

1. https://www.theguardian.com/fashion/2016/sep/07/hillary-clinton-fashion-show-fundraiser-anna-wintour ↩

2. http://www.vanityfair.com/style/2016/09/nyfw-2016-hillary-clinton#19 ↩

3. http://www.timesunion.com/local/article/Poll-Clinton-still-buries-Trump-in-New-York-9235547.php ↩

4. http://time.com/4497956/marc-jacobs-dreadlocks-outrage/ ↩

5. http://www.stylemag.net/2008/08/11/cotton-courage-katharine-hamnett-2/http://www.stylemag.net/2008/08/11/cotton-courage-katharine-hamnett-2/ ↩

6. http://www.vice.com/read/how-police-shootings-and-personal-loss-have-inspired-the-fashion-of-pyer-moss-456 ↩

7. http://www.harpersbazaar.com/fashion/trends/a421/coco-chanel-karl-lagerfeld-0909/ ↩

8. http://www.forbes.com/companies/chanel/ ↩

9. https://i-d.vice.com/en_us/article/why-fashions-eco-warrior-katharine-hamnett-is-kanyes-main-muse ↩

Born and educated within the small, but deeply conservative and religious town of Recanati in Italy, Leopardi is best known for his substantial contribution to Romanticism during the first half of the nineteenth century. Characteristically pessimistic and dark, Leopardi’s work often negotiates societal morals and is underpinned by a constant fascination with life and death, and the fineness of the boundary between the two. Writer Adam Kirsch, in an article for The New Yorker, described him as ‘the supreme poet of passive, helpless suffering’.¹ Throughout his own life Leopardi was plagued with ill-health, scoliosis and physical pain that arguably manifests in his writings. Despite this, his is distinguished as one of the most important figures of Modern discourse, particularly in Italy.

Leopardi originally wrote ‘Dialogo Della Moda E Della Morte’, (or ‘Dialogue Between Fashion and Death’) for the book Le Operette Morali (later translated to English as Essays and Dialogues), in 1824 when he was twenty-six years old. The book is an unusual publication in itself as it is a collection of ‘dialogues’ written almost as poems or short stories between various counterpoints, such as in ‘Dialogue between Physicist and Metaphysicist’ and ‘Dialogue between Hercules and Atlas’, each communicating a message, or moral lesson. Like many of the others, the conversation between Fashion and Death takes the form of a poetic dialogue. It begins with Fashion calling out to Death for recognition, claiming they are sisters: ‘Do you not remember we are both born of Decay?’ [2]. Death, with failing hearing and sight, does not recognise Fashion, who insists that they are bound by the fact that they ‘both equally profit by the incessant change and destruction of things here below’, that, ‘our common nature and custom is to incessantly renew the world.’² Death and Fashion, as Leopardi proposes in the poem, are of the same breed, both the executing decay and destruction on the body. Leopardi’s rather bleak, and at times playful depiction of fashion and death as fictional characters, conceptualises Fashion. The poem is rendered particularly profound and lasting in the context of contemporary fashion, or moreover, contemporary fashion writing. The work resonates in this context as an unusual example of fashion literature that critiques and parodies, the frivolousness of fashion. Even as this is written before the beginning of the development of the fashion industry into the Modern system (post-Industrial Revolution, Post-Charles Worth) we know it as today, the sentiment remains powerful.

Leopardi’s expressive and bleak words ultimately render Fashion as a cruel and destructive character, a perpetrator of suffering to the body whose doing is to ‘pierce ears, lips, and noses, and cause them to be torn by the ornaments I suspend from them.’ Fashion ultimately proves to Death their sisterhood in describing these inflictions on the human body. Towards the end of the dialogue the pair, somewhat perversely, race, in a sort of test to each other. Throughout the dialogue Fashion persists that she is an advocate of Death, aiding in the endeavour of shortening human life, a bleak and fantastical proposal supported by examples of the corset, the contortion of bound feet, of scarification and tattooing and painful ornamentation that damages human health and the body.

Aesthetics and trends in fashion, more so than ever before, constantly toy with symbolism and representations of death and human frailty. Among many other examples, Alexander McQueen’s theatrical and visceral designs, to the startling realism of fashion photographer Corinne Day, or Mugler’s 2011 campaign with Rick Genest, AKA Zombie Boy. ‘Death’ it seems, moves in and out of fashion on a regular basis. Although it might be a stretch to say that fashion allows us to negotiate the limits of our own mortality and thus become more reconciled with death, there is certainly a powerful connection between the two realms that Leopardi adeptly captures in this work.

***

Dialogue Between Fashion and Death (1824) by Giacomo Leopardi, and translated by Charles Edwardes in 1857

Fashion: Madam Death, Madam Death!

Death: Wait until your time comes, and then I will appear without being called by you. 

Fashion: Madam Death!

Death: Go to the devil. I will come when you least expect me.

Fashion: As if I were not immortal!

Death: Immortal? “Already has passed the thousandth year,” since the age of immortals ended.

Fashion: Madam is as much a Petrarchist as if she were an Italian poet of the fifteenth or eighteenth century.

Death: I like Petrarch because he composed my triumph, and because he refers so often to me. But I must be moving. 

Fashion: Stay! For the love you bear to the seven cardinal sins, stop a moment and look at me. 

Death: Well. I am looking. 

Fashion: Do you not recognise me?

Death: You must know that I have bad sight, and am without spectacles. The English make none to suit me; and if they did, I should not know where to put them.

Fashion: I am Fashion, your sister.

Death: My sister?

Fashion: Yes. Do you not remember we are both born of Decay? 

Death: As if I, who am the chief enemy of Memory, should recollect it!

Fashion: But I do. I know also that we both equally profit by the incessant change and destruction of things here below, although you do so in one way, and I in another.

Death: Unless you are speaking to yourself, or to some one inside your throat, raise your voice, and pronounce your words more distinctly. If you go mumbling between your teeth with that thin spider-voice of yours, I shall never understand you; because you ought to know that my hearing serves me no better than my sight.

Fashion: Although it be contrary to custom, for in France they do not speak to be heard, yet, since we are sisters, I will speak as you wish, for we can dispense with ceremony between ourselves. I say then that our common nature and custom is to incessantly renew the world. You attack the life of man, and overthrow all people and nations from beginning to end; whereas I content myself for the most part with influencing beards, head-dresses, costumes, furniture, houses, and the like. It is true, I do some things comparable to your supreme action. I pierce ears, lips, and noses, and cause them to be torn by the ornaments I suspend from them. I impress men’s skin with hot iron stamps, under the pretence of adornment. I compress the heads of children with tight bandages and other contrivances; and make it customary for all men of a country to have heads of the same shape, as in parts of America and Asia. I torture and cripple people with small shoes. I stifle women with stays so tight, that their eyes start from their heads; and I play a thousand similar pranks. I also frequently persuade and force men of refinement to bear daily numberless fatigues and discomforts, and often real sufferings; and some even die gloriously for love of me. I will say nothing of the headaches, colds, inflammations of all kinds, fevers – daily, tertian, and quartan – which men gain by their obedience to me. They are content to shiver with cold, or melt with heat, simply because it is my will that they cover their shoulders with wool, and their breasts with cotton. In fact, they do everything in my way, regardless of their own injury.

Death: In truth, I believe you are my sister; the testimony of a birth certificate could scarcely make me surer of it. But standing still paralyses me, so if you can, let us run; only you must not creep, because I go at a great pace. As we proceed you can tell me what you want. If you cannot keep up with me, on account of our relationship I promise when I die to bequeath you all my clothes and effects as a New Year’s gift.

Fashion: If we ran a race together, I hardly know which of us would win. For if you run, I gallop, and standing still, which paralyses you, is death to me. So let us run, and we will chat as we go along. 

Death: So be it then. Since your mother was mine, you ought to serve me in some way, and assist me in my business. 

Fashion: I have already done so — more than you imagine. Above all, I, who annul and transform other customs unceasingly, have nowhere changed the custom of death; for this reason it has prevailed from the beginning of the world until now. 

Death: A great miracle forsooth, that you have never done what you could not do! 

Fashion: Why cannot I do it? You show how ignorant you are of the power of Fashion.

Death: Well, well: time enough to talk of this when you introduce the custom of not dying. But at present, I want you, like a good sister, to aid me in rendering my task more easy and expeditious than it has hitherto been. 

Fashion: I have already mentioned some of my labours which are a source of profit to you. But they are trifling in comparison with those of which I will now tell you. Little by little, and especially in modern times, I have brought into disuse and discredit those exertions and exercises which promote bodily health; and have substituted numberless others which enfeeble the body in a thousand ways, and shorten life. Besides, I have introduced customs and manners, which render existence a thing more dead than alive, whether regarded from a physical or mental point of view; so that this century may be aptly termed the century of death. And whereas formerly you had no other possessions except graves and vaults, where you sowed bones and dust, which are but a barren seed, now you have fine landed properties, and people who are a sort of freehold possession of yours as soon as they are born, though not then claimed by you. And more, you, who used formerly to be hated and vituperated, are in the present day, thanks to me, valued and lauded by all men of genius. Such an one prefers you to life itself, and holds you in such high esteem that he invokes you, and looks to you as his greatest hope. But this is not all. I perceived that men had some vague idea of an after-life, which they called immortality. They imagined they lived in the memory of their fellows, and this remembrance they sought after eagerly. Of course this was in reality mere fancy, since what could it matter to them when dead, that they lived in the minds of men? As well might they dread contamination in the grave! Yet, fearing lest this chimera might be prejudicial to you, in seeming to diminish your honour and reputation, I have abolished the fashion of seeking immortality, and its concession, even when merited. So that now, whoever dies may assure himself that he is dead altogether, and that every bit of him goes into the ground, just as a little fish is swallowed, bones and all. These important things my love for you has prompted me to effect. I have also succeeded in my endeavour to increase your power on earth. I am more than ever desirous of continuing this work. Indeed, my object in seeking you to-day was to make a proposal that for the future we should not separate, but jointly might scheme and execute for the furtherance of our respective designs.

Death: You speak reasonably, and I am willing to do as you propose.

All images from the series ‘In Memory of the Late Mr. and Mrs. Comfort, a fable by Richard Avedon’ with model Nadja Auermann, commissioned in 1995 by The New Yorker.

1. Kirsch, Adam. “Under the Volcano: Giacomo Leopardi’s Radical Despair.” The New Yorker, October 25, 2010 ↩

2. Leopardi, Giacomo. “Dialogue Between Fashion and Death.” Le Operette Morali. 1824 ↩