The Piracy Paradox Revisited

29 Pages Posted: 14 May 2009 Last revised: 29 Jul 2014

See all articles by Kal Raustiala

Kal Raustiala

University of California, Los Angeles (UCLA) - School of Law

Christopher Jon Sprigman

New York University (NYU) - Engelberg Center on Innovation Law & Policy

Date Written: May 13, 2009

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

Suggested Citation

Raustiala, Kal and Sprigman, Christopher Jon, The Piracy Paradox Revisited (May 13, 2009). Stanford Law Review, Vol. 61, No. 5, 2009; UCLA School of Law, Law-Econ Research Paper No. 09-11; Virginia Law and Economics Research Paper No. 2009-10. Available at SSRN: https://ssrn.com/abstract=1404247

Kal Raustiala (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-794-4856 (Phone)

Christopher Jon Sprigman

New York University (NYU) - Engelberg Center on Innovation Law & Policy ( email )

New York, NY
United States

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