"Freedom to Copy" and the Fashion Industry

One of the more interesting undercurrents of IP thinking during the past decade has been on "social norms" as a basis for protection of IP rights. While this approach goes by various names, the common thread is the attempt to identify circumstances in which IP-like rights are protected in the absence of specific legal forms of IP protection.

In particular, this approach searches for norm-setting structures that appear to provide protection for IP-like rights for members of the group. A notable recent attempt to do so derived from the research of two economists connected with the Sloan School of Management at MIT, the distinguished professor Eric von Hippel here and his colleague Emmanuelle Fauchart. The two of them carried out a fascinating study of how French chefs protect their recipes in circumstances where there is no protection under the traditional IP categories here. Sanctions imposed by the members of this narrowly structured social group loom large in determining how recipes are protected.

Perhaps the most vigorous attempt to identify norm-setting structures in the American content has been the work of professors Kal Raustiala here and Christopher Sprigman here in connection with the fashion industry. Their most recent commentary appeared in the August 12th edition of the New York Times ("Why Imitation is the Sincerest Form of Fashion") here. The occasion of Raustiala and Sprigman's comments was the introduction of legislation by New York Senator Charles Schumer to amend the U.S. copyright law to afford explicit protection for fashion design.

Consistent with their approach, honed over a number of years of publications, the two authors make clear their opposition to the Schumer initiative. In particular, the Schumer bill would proect only the making of "substantially identical" copies of "unique" designs. In objection, the two professors write as follows:

"... [M]uch of the growth and creativity in the industry depends on imitation.

Why is that? Because of something we all know instinctively about fashion. As Shakespeare put it, “The fashion wears out more apparel than the man.” That is, many people buy new clothes not because they need them, but only to keep up with the latest style.

Without copyright restrictions, designers are free to rework a design and jump on board what they hope will be a money-making style. The result is the industry’s most sacred concept: the trend. Copying creates trends, and trends are what sell fashion. Every season we see designers “take inspiration” from others. Trends catch on, become overexposed and die. Then new designs take their place.

This cycle is familiar. But what is rarely recognized is that the cycle is accelerated by the freedom to copy."

As for legal protection of fashion designs, Raustial and Sprigman see only endless
litigation, driving up costs in the fashion industry, if the Shumer bill ever becomes law. Instead, they point to existing design patent protection, which in their view already provides adequate protection for truly new designs. There may be a bit of naivety here. Design patents take time to register, and this time line usually exceeds the time period during which a successful fashion line goes in and eventually out of popularity.

This disjunction between the time required to obtain a design patent and the ability of a designer to seek preliminary relief would seem to render most design patents worthless, if the name of the game is to protect the initial designer from "unacceptable" imitation. It was for this reason that the Israeli Supreme Court issued one of its most far-reaching decisions a decade ago, ASHIR, P.D. 54(4) 289, 1998, in which it applied the statutory right of unjust enrichment to protect a fashion designer, when design protection was not feasible (I hold constant the differences between U.S. design patent protection and design protection of the Israeli variety, but the basic point still holds. I further hold constant the position in other countries, especially those with fashion capitals such as Italy, France, England and Hong Kong.)

More generally, I am not certain that I fully understand the dynamics of the Schumer bill, if Raustiala and Sprigman are right about their analysis that the U.S. fashion industry prefers a freewheeling, imitation-based manner of doing business. If this is so, then who exactly is in favour of the Schumer bill? Presumably, since Schumer is a Senator from the State of New York, and New York City ia a fashion capital, there is someone influential within the fashion industry there (aka "a constituent") who is in favour of this legislation.

But if this is so, then such support would seem to be inconsistent with the authors' view that the fashion industry favors a"freedom to copy" environment. Who then (other than plaintiff attorneys, of course) within the New York fashion industry is in favour of the bill? And once we have identified these persons, how to we recoconcile their support for the bill with the view that a "freedom to copy" milieu is preferable for the fashion industry? Or maybe New York designers are a very different from French chefs when it comes to protecting the fruits of their creative labors.