Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design

Abstract:     
This is a comment on Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).

The Piracy Paradox builds on the fun of fashion to undertake a serious exploration of whether we can sustain innovation without property rights. That is an important question, as copyright brings with it a real cost in blocking follow-on uses and a new fashion copyright would limit subsequent copying. We need to ask whether that price is worth it. In this brief response, I emphasize two points. First, the case of the Fashion Originators' Guild of America suggests that we did see a design response to the private property rights regime created by the Guild. More property rights resulted in greater efforts to innovate. Second, copying is likely to be one-sided: low-end firms copy from high-end firms. With a fashion copyright, high-end firms could commit to their customers that they would not face quick matching by low-end copyists. Rapid imitation limits the value that high-end designers can promise to their customers.

Keywords: Kal Raustiala, Christopher Sprigman, intellectual property, copyright

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