Fashion, Models, and Intellectual Property

Abstract

In this Article, I revisit the impact of Professor Kal Raustiala and Professor Christopher Sprigman’s landmark article, The Piracy Paradox. Their work identified an empirical anomaly that was difficult to explain in light of the standard justification for intellectual property rights: although IP law does not grant meaningful exclusivity in novel fashion designs, the fashion industry invests significant resources developing those novel designs. To account for this anomaly, The Piracy Paradox shifted the focus from the supply side of innovation to the demand side. The standard justification emphasized that innovators face threats of copying that they cannot easily mitigate; The Piracy Paradox showed that copying itself may facilitate demand for novel fashion designs, sufficient to justify additional investments in producing those designs.

I argue that this refinement to the model underlying the standard justification pulled IP scholarship in two opposing directions. On the one hand, The Piracy Paradox provided a foundation for empirical work by exploring how industry-specific supply, demand, and exclusion dynamics could sustainably support investments in innovation and creativity. At the same time, these subsequent refinements have made it more challenging to construct coherent narratives about IP. Such narratives are valuable tools across the social sciences, serving as platforms for transmitting and developing knowledge about the world. The result is that IP scholars have a more precise understanding of how the world operates, but a diminished capacity for communicating that understanding to policymakers, newcomers to the field, and the public at large. I therefore conclude by calling for the development of simple narratives that encompass the empirical work that has been done in the wake of The Piracy Paradox.

Keywords: copyright, fashion, intellectual property, models, law and economics, social norms, innovation, creativity