Fashion’s piracy paradox — pdf
Some intellectual property scholars think that’s a terrible idea. “Growth and creativity in the fashion industry depend on copying,” said Christopher Sprigman, a law professor at the University of Virginia. “It’s the engine that drives the fashion cycle, and the bill would kill the engine.” He convincingly argued in a Virginia Law Review article he co-wrote that the lack of copyright protection is the key to fashion’s success as a $181-billion industry. He calls this “the piracy paradox.”
Fashion booms precisely because customers tire quickly of their clothes and continually buy new ones. Fashion can’t rely on technological improvements to make old products passe. Instead, it relies on copying, which spreads styles rapidly through all levels of society, from the haute couture client to shoppers at such low-priced retailers as H&M, Zara and Forever 21. As a result, what was trendy in April looks demode by August.
Consequently, designers are forced to continually reinvent [...]
[...] Interestingly, France’s protective laws have spurred few lawsuits. The French “don’t have an entrepreneurial class of plaintiff’s lawyers like we do,” Sprigman explains. But if the fashion copyright bill now before Congress becomes law, cases could clog the courts for years. And that could have a chilling effect on the whole industry. To be sure, fashion is now considered an art in sophisticated circles, the subject of scholarly study and lavish museum exhibits. Still, it seems absurd to copyright any dress that doesn’t have a novel printed on it.
Moreover, fashion copyrights would be difficult to enforce. How would courts decide if something as standard as a neckline or a hem is original? Designers continually recycle ideas and imitate one another. Sometimes they even filch from the copyists themselves.
On a Paris street many decades ago, Chanel’s press secretary saw someone selling Chanel knockoffs for 50 francs each. A crowd had gathered, and the vendor cried “Don’t push. There’s enough for everybody!”
According to Marcel Haedrich, who recounted the incident in his book, “Coco Chanel: Her Life, Her Secrets,” the press secretary bought one of the outfits in white linen with braided trim — a detail the original lacked — and gave it to her boss. Chanel took one look at the raffia-like plaiting and decided to use raffia in her next collection.
The paper is “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design;” Kal Raustiala and Chris Sprigman; Virginia Law Review, Vol. 92, p. 1687, 2006.
The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries.
Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry’s piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry’s swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright’s negative space - those creative endeavors that copyright does not address - we argue can we can better understand the relationship between copyright and innovation.