The Piracy Paradox Revisited

Abstract:     
Fashion design presents a significant challenge to the current enthusiasm for expansive intellectual property rights. Despite an absence of protection under American copyright law, creativity and innovation in fashion design remain vibrant. Nonetheless there is substantial sentiment in favor of some form of copyright for fashion design, and a “Design Piracy Protection Act” was recently re-introduced in Congress. This brief essay, part of a forthcoming colloquy in the Stanford Law Review, analyzes and critiques a defense of limited copyright protection for fashion design advanced by Scott Hemphill and Jeannie Suk. We argue that even limited design protection is unnecessary and unwise, and may well undermine those designers it is intended to help. We nonetheless agree with Hemphill and Suk on many other points of analysis, including the importance of understanding competing impulses - dubbed “differentiation” and “flocking” - that spur apparel purchases, and on the more general point that fashion design cannot easily be subsumed under conventional copyright analysis.

Keywords: copyright law, fashion design, copyright protection

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