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Article Excerpt
INTRODUCTION
I. WHAT IS FASHION? A. Status B. Zeitgeist C. Copies Versus Trends D. Why Promote Innovation in Fashion? II. A MODEL OF TREND ADOPTION AND PRODUCTION A. Differentiation and Flocking B. Trend Adoption C. Trend Production III. HOW UNREGULATED COPYING THREATENS INNOVATION A. Fast-Fashion Copyists B. The Threat to Innovation 1. Harmful copying 2. Distorting innovation C. Is Piracy Really Beneficial? IV. TAILORED PROTECTION FOR ORIGINAL DESIGNS A. The Scope of the Right B. Considering Objections CONCLUSION APPENDIX INDEX OF FIGURES AND TABLES Table 1. Selected U.S. Litigation Against Forever 21, 2007-2008 Table 2. Selected European Litigation, 2005-2008 Figure 1. Foley & Corinna and Forever 21 Figure 2. Jonathan Saunders and Forever 21 Figure 3. Yves Saint Laurent and Ralph Lauren
INTRODUCTION
Fashion is one of the world's most important creative industries. It is the major output of a global business with annual U.S. sales of more than $200 billion--larger than those of books, movies, and music combined. (1) Everyone wears clothing and inevitably participates in fashion to some degree. Fashion is also a subject of periodically rediscovered fascination in virtually all the social sciences and the humanities. (2) It has provided economic thought with a canonical example in theorizing about consumption and conformity. (3) Social thinkers have long treated fashion as a window upon social class and social change. (4) Cultural theorists have focused on fashion to reflect on symbolic meaning and social ideals. (5) Fashion has also been seen to embody representative characteristics of modernity, and even of culture itself. (6)
Indeed, it is hard to imagine a locus of social life--whether in the arts, the sciences, politics, academia, entertainment, business, or even law or morality--that does not exhibit fashion in some way. (7) People flock to ideas, styles, methods, and practices that seem new and exciting, and then eventually the intensity of that collective fascination subsides, when the newer and hence more exciting emerge on the scene. Participants of social practices that value innovation are driven to partake of what is "original," "cutting edge," "fresh," "leading," or "hot." But with time, those qualities are attributed to others, and another trend takes shape. This is fashion. The desire to be "in fashion"--most visibly manifested in the practice of dress--captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new.
In the legal realm, this social dynamic of innovation and continuity is most directly engaged by the law of intellectual property. At this moment, fashion itself has the attention of federal policymakers, as Congress considers whether to provide copyright protection for fashion design, (8) a debate that is sure to continue in the face of fashion designers' many complaints of harm by design copyists. (9) Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. (10) Thus it has seemed sensible to posit that fashion design is relevantly different from literature, music, and art, where legal protection from copying is thought to be necessary to provide producers an incentive to create. (11) Indeed, some commentators even suggest that perhaps fashion design is so different from other arts that its vitality, or even survival, paradoxically depends on the existence of the opposite kind of regime--a culture of tolerated rampant copying. (12)
This Article enters the debate about intellectual property protection and fashion design (13)--a debate in which the fashion industry finds itself divided (14)--and argues for a limited right against design copying. We set the legal policy debate within a reflection on the cultural dynamics of innovation as a social practice. Fashion in the realm of dress is a version of a ubiquitous phenomenon, the ebb and flow of trends wherein the new ineluctably becomes old and then leads into the new. Fashion is commonly thought to express individuality, and simultaneously to exemplify conformity. The dynamics of fashion lend insight into the dynamics of innovation more broadly.
Our motivation here is threefold. First, as the most immediate visible marker of self-presentation, fashion communicates meanings that have individual and social significance. Innovation in fashion creates vocabularies for self-expression that relate individuals to social worlds. As with other creative goods, intellectual property law plays a role in shaping the quantity and the direction of innovation produced by the fashion industry and made available for consumption by people who wear clothing--that is, everyone--a group larger than those who consume art, music, or books. Second, the fashion industry has huge economic importance. (15) Getting the economics of this industry right is an important challenge that must inform an inquiry into its regulation by intellectual property law. Third, the debate over legal protection for fashion design connects to a larger debate about how much intellectual property protection we want to have. (16)
The question of legal protection for fashion design poses the central question of intellectual property: the optimal balance between, on the one hand, providing an incentive to create new works, and on the other hand, promoting the two goals of making existing works available to consumers and making material available for use by subsequent innovators. We treat fashion as a laboratory to ask this question anew. The fashion trend is a particularly vivid manifestation of a general innovation pattern wherein those engaged in innovation continually seek after the new and different while, at the same time, converging with others on similar ideas. Fashion conspicuously exhibits the challenge of providing incentives for individuals to innovate while preserving the benefits to innovation of moving in a direction with others.
This Article offers a new model of consumer and producer behavior derived from cultural analysis in an area where consumptive choices are also expressive. In fashion we observe simultaneously the participation in collective trends and the expression of individuality. Consumers have a taste for trends--that is, for goods that enable them to move in step with other people. But even in fulfilling that taste, they desire goods that differentiate them from other individuals. Fashion goods tend to share a trend component, and also to have features that differentiate them from other goods within the trend. Consumption and production of fashion must be understood with respect to both the trend features and the differentiating features. Formalizing these cultural observations, we call these two coexisting tastes "flocking" and "differentiation." Fashion puts into relief people's tendency to flock while also differentiating from each other.
Individual differentiation within flocking is our account of fashion behavior. But we can observe versions of this dynamic too in other areas of innovation, for example, the production and consumption of books, music, film, and other arts. Where innovation is a site of both self-expression and social expression, we can see producers and consumers of creative goods flocking to themes in common, but differentiating themselves within that flocking activity.
The model makes visible an important analytic distinction that is useful for thinking about creative goods--the distinction between close copying on one hand and participation in common trends on the other hand. Design copying must be distinguished from other forms of relation between two designs, which may go by any number of names including inspiration, adaptation, homage, referencing, or remixing. Our analysis resists elision of close copies and myriad other activities that produce, enable, and comprise trends. Goods that are part of the same trend are not necessarily close copies or substitutes. Rather, they may be efforts to meet the need of consumers for individual differentiation within flocking. The well-known fact that "borrowing" is common in fashion, (17) and might be valuable to fashion innovation, does not itself provide support for the permissibility of close copying in fashion design.
Our theory leads us to favor a legal protection against close copying of fashion designs. The proliferation of close copies of a design is not innovation--it serves flocking but not differentiation. It is importantly distinct from the proliferation of on-trend designs that share common elements, inspirations, or references but are nevertheless saliently different from each other. With respect to close copies, there is no reason to reject the standard justification for intellectual property, that permissive copying reduces incentives to create. But this effect must be distinguished from the effects of other trend-joining activities, which enable differentiation within flocking. They foster and constitute innovation in ways that close copying does not. Thus we argue in favor of a legal right that would protect original fashion designs from close copies.
Some readers will no doubt bristle at the implication that Prada, say, ought to enjoy better protection for its wares. That reaction misunderstands the project. Because the current legal regime denies design protection while providing trademark and trade dress protection, the primary threat to innovation currently is not to the major fashion conglomerates. As we explain, these luxury firms are already well protected by the existing trademark and trade dress legal regime, brand investments, and the relatively small overlap between markets for the original and for the copy. The main threat posed by copyists is to innovation by smaller, less established, independent designers who are less protected along all of these dimensions. Affording design protection would level the playing field with respect to protection from copyists and allow more such designers to enter, create, and be profitable. Relative to the current regime, we would expect the resulting distribution of innovation to feature increased differentiation and range of expression. It would also push fashion producers toward investment in design innovation and away from proliferation of brand logos by established firms making use of what legal protection is available.
Fashion highlights a social dynamic to which intellectual property law inevitably attends: the relation between the individual and the collective in the production and consumption of creative work. The interplay of individuality and commonality with others poses a constant tension in innovation and its regulation. The distinction we emphasize--essentially between copying and remixing--runs through intellectual property. (18) The idea that innovation--in the form of interpretation, adaptation, and remixing--is not harmed but benefited by legal protection against close copying suggests a need to attend to this often elided conceptual distinction in conducting the debate about how much intellectual property protection we want to have, not only in fashion, but elsewhere.
This Article works between two modes of analysis: law and economics, and cultural theory. We use each set of lenses together. (19) Law engages culture through a system of regulation and distribution. Economic analysis of law, for its part, endeavors to design legal regulation that induces optimal private choices, given a set of criteria about what is desirable. (20) This instrumental project can benefit from a cultural account that identifies a set of features to be optimized. The ambition here is to generate insights that deepen understanding of both culture and economics while blurring their boundaries, to clarify the goals and consequences of legal regulation. Culture-oriented readers may perceive the cultural insights here to subsume economic ones, while at the same time, economically oriented readers may perceive the economic insights to subsume culture. This is a not altogether unintended result of an approach that we might call "cultural law and economics," and on which we hope to elaborate in the future. (21) Though our own fuller excursus on the approach is beyond the scope here, it is arguably both a new method of boundary-crossing that demands development, and one that nuanced scholars of law, culture, and economics have engaged all along.
The Article proceeds as follows: Part I begins by discussing two major theories of fashion based on status and zeitgeist, which will become important to our ensuing analysis. It then offers the key distinction between copying and trends, which we argue is necessary for accurate understanding of fashion innovation. Finally, this Part briefly discusses the normative question whether fashion is a desirable site of innovation. Part II theorizes the culture of fashion as the simultaneous operation of two phenomena that we call "differentiation" and "flocking." It models fashion consumption as the simultaneous adoption of a trend feature combined with differentiating features of a good, and explains how designers come to offer products that appeal to both differentiation and flocking at once.
Part III explains the threat to innovation posed by a recent, important change in industry structure--namely, new "fast-fashion" manufacturers and retailers that engage in unregulated copying on a large scale. This Part shows how fast-fashion copyists both reduce innovation and affect its direction. In response, Part IV proposes a new intellectual property right that grows out of our analysis. The new right would protect original designs, but only from close copies. Our proposal takes an intermediate stand between permitting free copying of fashion designs and creating a broad right of exclusion. The Conclusion underscores the broad implications of the social dynamics of innovation explored here for the field of intellectual property generally.
I. WHAT IS FASHION?
Fashions change. Styles emerge, become fashionable, and are eventually replaced by new fashionable styles. (22) What is obvious is that the demand for new fashions is not reducible simply to material or physical needs. Though one may need a replacement pair of jeans when an old pair gets holes from wear, or a warmer coat when the weather gets cold, for most people across the socioeconomic spectrum, the purchase of clothing is far from limited to these kinds of situations. Nearly all of us inevitably participate in fashion, even if we do not try to follow it.
Fashion change is an elusive phenomenon, in need of cultural explanation. Thinkers in a range of fields have reflected on what fashion is, and in particular what accounts for fashion, the movement from introduction to adoption to decline of particular styles. We begin by discussing two principal theories of fashion that will become important in our ensuing analysis.
A. Status
The most influential and widely held theory posits fashion as a site of struggle over social status. This is a view most concretely articulated in terms of social class at the turn of the century by Georg Simmel, the German sociologist, who was in turn influenced by Thorstein Veblen's classic work, The Theory of the Leisure Class. (23)
According to this view, fashion is adopted by social elites for the purpose of demarcating themselves as a group from the lower classes. The lower classes inevitably admire and emulate the upper classes. Thereupon, the upper classes flee in favor of a new fashion in a new attempt to set themselves apart collectively. This trickle-down process, moving from the highest to the lowest class, is characterized by the desire for group distinction on the part of the higher classes, and the attempt to efface external class markers through imitation on the part of the lower classes. (24) Change in fashion is thus endlessly propelled by the drive to social stratification on the one hand and to social mobility on the other.
When the magazine Vogue was founded in 1892, its first published pages presented the editorial goal as the representation of the lifestyle of New York high society, "the establishment of a dignified authentic journal of society, fashion and the ceremonial side of life." (25) According to a recent history of the magazine, at the turn of the century, the social context of Vogue's origin was one in which the most privileged families of New York "felt invaded by parvenus who, with little lineage but plenty of money, attempted to join in its aristocratic activities." (26) From the beginning, Vogue's representations of the fashions of the upper class were accompanied by those of the homes and parties of prominent families, as well as articles on social etiquette. (27)
This feature has stayed constant throughout the last century, as Vogue has been the most visible and important U.S. publication devoted to fashion. (28) The magazine exerts tremendous influence on consumers and the fashion industry, (29) and continues today to feature prominently the link between fashion, high society, and wealth. It functions as an arbiter of taste and style, representing fashion trends and contributing to their creation. The images of the lifestyles presented are unabashedly those of elites--wealthy socialites, celebrities, and occasionally people associated with high culture. But these images are not intended only for the wealthy. The dominant reach of Vogue depends on circulation outside of the social elite and among the many other readers. It aims at aspiring middle-class consumers as well as affluent upper-middle-class and upper-class women. (30)
Though the social class account has been criticized as too simplistic and one-dimensional, (31) the broad influence of status is still in abundant evidence today. Fashion trends reach many consumers via observation of the ways of the wealthy and other high-status people. Within that project of cultural dissemination there is self-conscious openness about the trickle-down aspect of fashion trends. Fashion magazines, for example, sometimes juxtapose images of new high-priced fashion items, unaffordable by a long stretch for most of the readership, with pictures of similar, lower-priced items and information about where to obtain them. (32) The drive of the ordinary consumer to emulate those who can afford the most expensive fashion is assumed and indeed promoted in the popular discourse of fashion.
B. Zeitgeist
The other major theory of fashion sometimes goes by the term "collective selection," associated with the sociologist Herbert Blumer. (33) On this theory, fashion emerges from a collective process wherein many people, through their individual choices among many competing styles, come to form collective tastes that are expressed in fashion trends. The process of trend formation begins vaguely and then sharpens until a particular fashion is established. (34) The themes of the trend reflect the spirit of the times in which we are living.
This theory arises as a direct critique of the trickle-down theory. The driver of fashion is not necessarily imitation of high-status people per se. Rather, people follow fashion because they desire to be in fashion. That is, people want to associate themselves with things that are new, innovative, and state of the art. They want to keep pace with change. If a particular fashion starts in a certain group, then other people join, not simply out of desire to emulate that group, but because being in fashion is desirable. (35)
As a means of signaling and communicating about oneself, and of perceiving messages about others, (36) dress has a symbolic function and is even considered by some social theorists to be a code or a language that provides visual cues and signifiers of identity, personality, values, or other social meanings. (37) Consumers choose among many possible options that are available in the market, and select the styles that they will wear, not merely based on their size and physical needs. They often think of their fashion choices as expressions of individuality and personal style. At the same time that the selections so operate at the individual level, they also aggregate into collective tastes. (38)
Through the process of selection and aggregation of tastes, the fashion trend that emerges reflects the zeitgeist. This movement happens through individual choices, but it has a collective character that implicates society. For example, September 11 was widely thought to have affected fashion. (39) A fashion for military looks may arise when the country is at war. (40) Styles--not just sales--may refer to an economic downturn. (41) A style sported by a particular public figure may capture the zeitgeist or inspire a trend. (42)
The symbolic function of fashion depends on the interplay of individual and social meanings. Fashion features the tension between the desire to be distinct as an individual and the desire to connect with a collectivity. Another way of saying this is that the fashion process imposes social constraints and parameters within which individual choices of communication and expression are shaped and directed. Fashion is then driven forward as a combination of individual differentiation and collective identification, and of the personal and the social impulses.
Without necessarily denying the importance of status or imitation in the explanation of fashion trends, what we are calling the zeitgeist theory is in effect a critique of a status account in which fashion trends essentially consist of imitation of high-status people. The zeitgeist theory views trends as the collective aggregation of individual choices throughout society. These choices, which are both expressive and consumptive, converge on themes that reflect the milieu and social context of the times.
C. Copies Versus Trends
In each of these theories, consumers desire, and producers provide, articles that are on trend. Some observers assume that the trendy articles are copies: either the exact same article purchased from the same producer, or else a close copy of most elements of the original's design. But such copies play only a limited role in the rise and fall of trends. Participation in a trend--by a consumer or a designer--does not necessarily or usually entail copying.
First, one individual may seek to imitate another--as the status theory suggests--but without necessarily copying her dress. One can imitate another's style by consciously or unconsciously being influenced to wear clothes in that style. Copying is a more literal and direct process in which one targets the original for replication. For example, a consumer can imitate the length of a skirt without necessarily purchasing a copy of that skirt. Copying, in other words, is only a subset of a wide range of imitative practices.
Second, consumers may join trends without an imitative motive. The zeitgeist theory emphasizes not imitation, but rather an individual's distinct desire to be in fashion. People can want to be in fashion without necessarily having as their object the emulation of the lifestyle, values, or status associated with a particular group that first sported the style. They may instead--or also--seek to join a collective moment. Such convergence does not require a copy of what others are wearing.
Third, designers may furnish on-trend articles without closely copying one another. Instead, they may engage in interpretation, or "referencing." (43) They may quote, comment upon, and refer to prior work. (44) Unlike much close copying, such interpretation does not pass off the work as the work that is being copied. Instead, it marks awareness of the difference between the two works as it looks to the prior work as a source of influence, or even a precursor. Even where the influence is not completely conscious or direct, the latter work draws on the meaning of the earlier work, rather than being simply a copy of it. For example, the look of a Chanel knit jacket has been interpreted repeatedly in other designers' styles, so that it has become a classic style drawing on the spirit of the look without purporting to be a Chanel product. Another Chanel classic, the quilted handbag, has been similarly reinterpreted.
This practice, by which designers draw freely upon ideas, themes, and styles available in the general culture, and refer back to others' prior designs, has led to the widespread but incorrect view that there is no real originality in fashion design. (45) This view is no more correct than the analogous complaint about music: that homage and pastiche somehow deny any claim of originality to new works. The important point is that interpretations are different from copies in their goals and effects. Close copies can substitute for and reduce the value of the original, thereby reducing the incentive to create, to a greater extent. Rather than being substitutes, interpretations may even be complements for other on-trend articles. (46)...
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