The Law, Culture, and Economics of Fashion
C. Scott Hemphill
New York University School of Law
Jeannie Suk Gersen
Harvard Law School
Stanford Law Review, Vol. 61, March 2009
Columbia Law and Economics Working Paper No. 344
Harvard Law and Economics Discussion Paper No. 627
Harvard Public Law Working Paper No. 09-63
Fashion is one of the world's most important creative industries. As the most immediate visible marker of self-presentation, fashion creates vocabularies for self-expression that relate individuals to society. Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.
Number of Pages in PDF File: 55
Keywords: class, copies, copying, culture, copyright, economics, fashion design, innovation, piracy paradox, trademark, status, zeitgeist
JEL Classification: D21, D23, D42, D43, L13, L22, L67, O34
Date posted: January 8, 2009 ; Last revised: June 30, 2013
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