Christopher Sprigman on IP and the Fashion Industry

Interesting articles on IP by law professor Chris Sprigman:

“Where IP Isn’t,” by Kal Raustiala and Christopher Jon Sprigman

Virginia Law Review, In Brief, January 22, 2007

UCLA School of Law Research Paper No. 07-05

Abstract:
The orthodox argument for IP proceeds in three steps. First, creative works are often difficult and expensive to create – think of the poet in pursuit of the right verse, or pizza-fueled late nights spent programming a new video game. Second, once the author or inventor produces the first version of a work, others will find it quick and cheap to copy the work. Third, unless the law equips the creator with enforceable exclusive rights, the copyist, having invested nothing in the creation of the work, will outcompete the originator and deny her a return on her investment. The practices of the fashion industry are hard to square with the traditional justification. The global fashion industry produces a huge variety of creative goods without strong IP protection in one of its biggest markets (the United States), and without apparent utilization of nominally strong IP rights in another large market (the countries of the European Union). Copying and derivative re-working of fashion designs are rampant in both the U.S. and E.U., as the traditional account would predict. Yet innovation and investment remain vibrant.

Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected – and economically successful? We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. Our article offers a model explaining how the fashion industry’s piracy paradox works, and how copying functions as an important element of, and perhaps even a necessary predicate to, the industry’s swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation in particular industries? Are stable low-IP equilibria imaginable outside of the fashion industry?

and

The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, by Kal Raustiala and Christopher Jon Sprigman

Virginia Law Review, Vol. 92, p. 1687, 2006

UCLA School of Law Research Paper No. 06-04

Abstract:
The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries.

Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected – and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry’s piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry’s swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright’s negative space – those creative endeavors that copyright does not address – we argue can we can better understand the relationship between copyright and innovation.

Sprigman also argues for the reintroduction of copyright formalities (which I argue for as well, e.g. in Let’s Make Copyright Opt-OUT):

Reform(aliz)ing Copyright, by Christopher Jon Sprigman

Stanford Law Review, Vol. 57, p. 485, 2004
Stanford Public Law Working Paper No. 88

Abstract:
Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a conditional copyright system that premised the existence and continuation of copyright on compliance with formalities, to an unconditional system, where copyright arises automatically when a work is fixed. Richard Epstein has aptly characterized these changes as copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not. That is a fundamental shift in any property rights regime, and one that, in the copyright context, represented a break with almost two centuries of practice.

The advent of unconditional copyright has generated little comment in the academic literature – perhaps because the very term formalities signals that the former requirements were trifling, ministerial, or more bothersome than helpful. This paper argues that the disappearance of formalities was an important shift, and a harmful one. The paper recommends the re-introduction of formalities – albeit in a new form that accounts for changes in technology and complies with our international obligations under the Berne Convention, the principal international treaty governing copyright. This paper explores the important role that formalities played in our traditional copyright regime, particularly with respect to maintaining a balance between private incentives to produce creative works, and public access to those works. The paper then lays out a few possible approaches to re-introducing new-style formalities that comply with Berne.