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The typical explanation for intellectual property law goes something like this: Creating new books, films, drugs, songs, etc. is expensive, but once the nifty new thing is produced, copying is cheap (or, in the case of copying done over the Internet, free). Unrestrained copying robs creators of the means to profit from their works -- the copyist can always outcompete the originator. So we need IP protections to make sure that the original author or inventor has control over copying. This way, authors and inventors will be properly motivated to create.
That's a sensible theory, but it doesn't always translate in the real world. Consider the fashion industry, a creative industry larger by far than the film, recorded music and book publishing industries. The logos and labels that adorn apparel and accessories are protected by trademark law. But the designs of the garments themselves - the cut of a sleeve, the fit of a bodice - are not. Copyright law does not cover most fashion designs because clothing is a "useful article", a class of items that falls in the jurisdiction of patents and not copyrights. But patent law is almost irrelevant to fashion designs, both because the patent standard of "novelty" cannot be met by most designs, and for the practical reason that the patent application process proceeds too slowly to be meaningful for most fashion designs, which live a brief commercial life and then disappear.
So current U.S. IP law does little to protect fashion designs, and yet the fashion industry is doing quite well, thank you. How can that be? Take a look again at the typical explanation for IP law that I set out in the first paragraph of this post. Anyone who shops - even us men - cannot help but notice that there is lots of copying (aka, "piracy") of fashion designs. And yet the stores are full of innovative new designs every season. We have a puzzle.
My colleague Kal Raustiala and I have written a paper trying to explain how the fashion industry innovates in a low-IP environment. Our claim is that copying doesn't hurt the industry much, and indeed probably helps it. For our complete account, read the paper. But here's a quick summary:
The fashion industry profits by setting trends in clothing, and then inducing consumers to follow those trends. This process leads us to treat clothing as a status-conferring good to be replaced once the fashion changes, rather than as a durable good to be replaced only when all the buttons fall off. Trend-driven consumption is good for the fashion industry, because it sells more clothing. (Whether this is good for consumers, or for society as a whole, is a different question, and one we don't address in our paper.) In any event, the fashion industry's ability to create trends is based on designers' relative freedom to copy. It takes lots of variations on a particular attractive theme to make a trend - and generally, we're talking about variations on a recognizable theme, not exact copies. So in spring 2005 we get dozens of variations on a particular style of mens' "driving shoe". At about the same time we find hundreds of variations on the "bohemian skirt". In any given season, we see designers working on similar design themes that define the current mode. All the clothing is a bit different, but it's also strikingly similar. (Take a look at our paper for pictures that give examples of trends.)
So what does this matter? Well, if the law prohibited fashion design copying, then the fashion industry would have a much harder time creating and responding to trends. U.S. copyright law prohibits not only verbatim copies, but also any work that is "substantially similar" to a preexisting copyrighted work. So if copyright law were extended to fashion designs, the unique innovation culture of the fashion world might come under intense legal scrutiny. Designers will give way to lawyers, as every season's new collection is carefully examined for potential legal liability. Young and unknown designers will be worst off, as they will not be able to afford the lawyers' fees that will be part of the new price of admission to the industry. And an industry that has been a thriving locus of both unbridled creativity and profit may suffer.
Sound bad to you? Then please write your Congressman and tell him/her to oppose H.R. 5055, a bill currently pending before the House which would extend copyright protection to fashion design. I'll write more about H.R. 5055 soon, but in the meantime, here is the congressional testimony that Kal Raustiala and I prepared for the hearings on the bill.