The Dangers of Copyrighting Fashion

April 12, 2010
Guest Post

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.

But even if it did, it's not clear what (conceptually speaking) it would mean to say that more investment in fashion design - spurred by greater intellectual property protection of fashion - would make us, as a society, better off. In her work with Professor Scott Hemphill, Professor Suk has offered the intriguing argument that the existence of trademark and trade dress protection has distorted the balance of protection, since wealthier designers who have more brand identity (and can resort to trademark and trade dress protection) are less affected by design piracy than smaller, less well-established designers (who lack widespread brand identity, and are less able to take advantage of the protections that trademark and trade dress offer). For this reason, Suk and Hemphill have argued that design protection necessarily levels the playing field, enabling smaller, less well-established designers to protect their creations given their comparably weaker brand identities.

We think it is important to focus not just on the law of intellectual property as it exists on the book, but also the reality of its enforcement. The consequences of intellectual property protection for fashion are likely to be distributively biased towards the wealthiest designers - more money for major fashion houses with the resources to enforce their intellectual property rights, less for smaller innovators who are likely to find it harder to do so. Further, in the absence of robust fair use protections, designers that interpret, remix, improve upon, or alter existing designs-the "secondary design innovators" we might call them-can be caught in a grey area. Armed with new legal weapons, established designers are likely to lay claim to expansive protections, deterring the very creativity that intellectual property is designed to protect, and perhaps preventing the sort of follow-on innovation that pervades fashion trends. Like so many other areas of intellectual property that have faced this problem, the very existence of broad and imprecise intellectual property protections may have the effect of detering socially valuable innovations from taking place.

The utilitarian argument for fashion intellectual property seems quite weak. What we seem to be left with are claims by the fashion industry that fashion should be legally protected because copying is somehow immoral. But in the absence of intellectual property protection or an attempt by the copier to pass off his merchandise as the genuine article, it is hard to say that copying must be prevented at any cost. The patina of immorality from which the fashion industry draws rhetorical force almost certainly reflects the existence of intellectual property in other creative fields. Moreover, as we have argued in our recent book, copying and free riding are essential parts of the creative process: all creators begin with a common creative palette drawn from prior innovations they had no role in producing. 

Finally, granting intellectual property protection will hardly eliminate copying. One of the inevitable byproducts of intellectual property protection - in any field - is disobedience. Legal protection for fashion seems unlikely to eliminate copying any more than intellectual property protection for trademark prevents knock-offs or copyright for music has been able to stamp out file sharing. And, as we have experienced with virtually every medium currently protected by intellectual property law, we will have invited the fashion industry (and fashion consumers) onto the treadmill of ever expanding legal protection and punishment. Intellectual property protection for fashion will diminish the domain of legal conduct, and when people run afoul of their new constraints, the industry will point to that disobedience as justifying even more legal protection and punishment. We've seen this movie before. 

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