By Eduardo M. Peñalver and Sonia K. Katyal. Peñalver is a professor of law at Cornell University Law School and Katyal is a professor of law at Fordham University School of Law. They are authors of Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership.
Every business owner dreams of enjoying a legally enforced monopoly. Fashion designers are no different. Although the brands and logos that appear on clothes are protected by trademark law, the designs of fabrics themselves are protected by copyright, and functional innovations in clothing are protectable by patent law, fashion designs themselves are legally, um, naked. For decades, designers have complained that, like painters, filmmakers, architects and authors, they are entitled to intellectual property protection to protect their creative efforts against unauthorized copying. So far, they have been unsuccessful. That hasn't stopped Senator Charles Schumer from teaming up with Harvard law professor Jeannie Suk to try, yet again, to make fashion designers' monopoly dreams come true.
There's broad consensus that the strongest justification for awarding intellectual property protection is to spur innovation in situations where unauthorized copying could deprive innovators of the returns on their investment in the development of new products. The classic example is the drug patent, which prevents copiers from depriving pharmaceutical companies of a return on their investment by cheaply reverse-engineering a drug that cost billions of dollars to develop. But, as the drug example makes clear, creating intellectual property protection comes at a steep social cost. Providing a limited-time monopoly to innovators allows them to charge monopoly prices. While this is arguably necessary to allow innovators to recoup development costs, it also puts the protected goods out of reach of many consumers, as we've seen in the countless debates about access to HIV medicines. Intellectual property protection also generates significant litigation, as parties spend time and resources fighting over the scope of their legal rights.
Because of its significant costs, intellectual property protection should be extended only where the gains to society are clear. The social benefits of protecting fashion innovation, however, seem like a harder case that deserves some caution. For starters, the argument that the fashion industry deserves intellectual property protection has to rest on some version of a claim that, because of copying, existing investment in fashion innovation is lower than it should be. This is a hard claim to credit without strong empirical support. The industry appears to be robust and profitable in the absence of such protections. Moreover, far from making consumers worse off, copying of fashion innovations quickly spreads them to the masses. Intellectual property protection might slow down the process, concentrating the benefits of design innovation in the hands of those who can afford to pay monopoly prices. Indeed, as Chris Sprigman and Kal Raustiala have argued, copying actually appears to drive innovation in fashion as cutting edge designers (and their wealthy customers) try to stay one step ahead of the copiers. Empirically speaking, then, legal protection for fashion may not translate into greater investment in fashion innovation on a broad scale.