IP protection for Fashion Designs

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Patently-O serves up some fresh links on IP protection for Fashion Designs. A bill has been proposed to provide protection for fashion designs. I think this would be inadvisable for a number of reasons.

First, as others have stated, the fundamental motivation behind Intellectual Property rights is to ensure that a public good that is easily copied will not be under produced. I have not heard any arguments that fashion is underproduced because designers are not able to capitalize on their works. In fact, such an argument would be predicated on the misconception that designers sell designs. Designers do not sell designs: they sell status, and status cannot be protected by the newly proposed Intellectual Property law.

Status is already protected by current Intellectual Property law in the form of Trademark law. The blackmarket fashion “pirates” who do attempt to “pirate” status do so by producing an exact replica of the “real thing,” which includes wrongfully using trademarked designer labels and logos, as well as copyrighted fabric designs. Thus, these “pirates” are already breaking existing laws and can be prosecuted under those laws.

This newly proposed legislation is instead targeted at low-status retail outlets from Nordstrom to Walmart who produce fashion similar to the high-status designs of the more exclusive shops. However, these mass-produced “knock-offs” do not carry the same status or cache as their more exclusive counterparts. These “knock-offs” therefore do not compete with the originals and thus do not prevent innovation in fashion design. In fact, these low-status copies encourage innovation: high-end designers are constantly forced to find new ways to distinguish themselves from their mass-market counterparts. In the meantime, more and more Americans are able to participate in the business of being beautiful.

Even if IP protection would increase the number of fashion designs, I would question whether additional fashion designs provide any added social benefit. I am certainly not anti-fashion. I am the only heterosexual male I know who reads InStyle magazine. While fashion itself is valuable in that it gives us a common language of expressing ourselves with our clothing, the actual number and content of designs is fairly arbitrary. If the toga were considered the dress of a dignified and professional man, everyone commenting on this blog would wear one to the office.

Furthermore, I can see this type of legislation being enforced very asymmetrically. It will be used by big name designers to prevent small retailers and chain stores of lesser prestige from copying their styles. However, when that same big name designer goes into a trendy youth hot spot and spies some new fashion innovation and then uses that innovation in their next fashion collection, will the trendy innovators be able to assert their rights against the big designers? Seems unlikely. The upshot is that this law will be used to ensconce big name designers in their position as the arbiters of fashion.

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