Legal Commentary

As so many professors do during Fashion Week, my thoughts turn to intellectual property protection for clothing design. As background, those asserting protection for fashion designs have an uphill battle under IP law.  Under copyright law, clothing is generally considered functional and not protectable.  Design patents are a good source of protection, but because even the top designers make critical changes during the last days, even a several-month-window from application to patent can prevent designers from obtaining an enforceable right when the design is most fresh. (By the way, if you've ever been curious about how a top designer works, the documentary "Marc Jacobs & Louis Vuitton" has some interesting moments).  Incorporating a prominent trademark into a design is perhaps the easiest way to ensure protection.  Is it any wonder that many designers add logos? 

Some bills have been introduced, so far without success, to specifically address IP protection for fashion designs, most recently in April 2009. There has been some interesting scholarship analyzing the issues presented by expanding this protection, including a paper by Kal Raustiala and Christopher Springman, who contend that, under a "piracy paradox," which as the authors describe the fashion industry "counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it."  Another dimension is presented by C. Scott Hemphill's and Jeannie Suk's paper, "The Law, Culture, and Economics of Fashion," in which the authors discuss a "cultural law and economics" approach that advocates protection against the ability to make close copies of original fashion designs. 

Both works underscore that the answer to the question of whether fashion should be protected, or not, has larger implications to the operation of the legal system to protect works of the mind.  How one answers that question is part of the more profound inquiry--does more (or less) protection increase the total amount of innovation?