Raustiala, Kal and Sprigman, Chris "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04. http://ssrn.com/abstract=878401
This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.
This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.
Barnett, Jonathan, Grolleau, Gilles and Harbi, Sana El. "The Fashion Lottery: Cooperative Innovation in Stochastic Markets." USC CLEO Research Paper No. C08-17; USC Law Legal Studies Paper No. 08-21. http://ssrn.com/abstract=1241005
This article puts an economic spin or an economist's viewpoint on the fashion copyright debate. In other words, it applies economic principles to the fashion industry to show why an incomplete property regime, not complete copyright protection, is the most sensible situation for the fashion industry. To build this argument, the author first explains the concept of "fashion risk," the main economic problem in fashion. Due to demand uncertainty in the fashion industry, it is difficult to forsee if a new design will be successful. So, designers need a system of collective insurance to balance the losses from seasonal product failure and the risk of firm bankruptcy. This collective insurance comes from designers allowing limited imitation which maximizes earnings in the long run. Basically, how this economic idea works is that the designer that produces the "winning" design for that season earns a larger prize, keeping the incentive for innovation alive. However, the incomplete property regime also gives smaller profits to the "losing" designers as a kind of insurance against the "fashion risk." This method is termed the "winner take most" approach. The article then transitions into three different types of imitation: mark perfection, design perfection, and quality perfection. These are then related to three different methods of imitation: horizontal imitation, legitimate vertical imitation (knockoffs), and illegitimate vertical imitation (counterfeits). Basically, horizontal imitation is copying among high end designers while vertical imitation is copying of elite designs by lower end fashion designers in a trickle down effect. As stated previously, the fundamental economic problem for designers is demand uncertainty and the associated risk of bankruptcy. By allowing horizontal imitation and legitimate vertical imitation, this risk is greatly reduced. An obvious way to success for the majority of the market is to wait until the winning design is determined for the season by the consumers and then release imitation products as this eliminates risk and increases success. However, this would kill innovation. So, the best solution is incomplete protection-positive yet constrained imitation. The economics equations show that to maximize final wealth and minimize the variance of final wealth incomplete, not complete, property regimes are required. This can be explained by the idea that at one extreme the winner does not make enough and so incentive is low. At the other extreme, insurance is too low and risk is too high. Both of these cases lead to underinnovation. In short, some imitation supports design innovation while too much or too little undermines it. Therefore, only the very few elite firms can afford the complete copyright protection suggested by bills such as the Design Piracy Prohibition Act.
This article is a very unique way to approach this fashion copyright war. It is an invaluable asset to my argument against enacting fashion design protection laws. This article basically utilizes economical principles to build mathematical equations proving that incomplete copyright protection or rejection of recently proposed copyright laws is more beneficial to society than enacting complete protection for fashion designs. The organization of this paper with alternating pieces of mathematical equations and textual analysis creates an extremely convincing and almost indisputable argument due to the logical thought process this method of presentation creates. This article greatly enhances my argument in that it provides an alternative viewpoint, particularly an economist's angle, which still points towards the same conclusion: fashion copyright laws should not be enacted.