The piracy paradox: Innovation and intellectual property in fashion design
The Piracy Paradox is a law review article that documents, and attempts to explain, why copyright, patent, or similar forms of intellectual property are not used in the context of the fashion industry. The paradox is that piracy in the context of fashion, the authors suggest, not only does not inferfere with the creation of new innovations in the fashion industry but actually actually encourages innovation. The paper presents a model that can explain this very different role of piracy although the model is very high-level and theoretical.
Much of the article provides a background into the fashion industry and into the role that ownership over designs has played in the fashion industry. In addition to describing the basic high-level structure and functioning of the industry, the authors use a number of photographic examples from fashion industry magazines to show the widespread and shameless role that copying plays.The authors describe some of the ways that fashion cartels in the early part of the 20th century attempted to limit copying of designs. Following the collapse of this cartel or guild, fashion entered what the authors describe as a "low-IP equilibrium." Trademark is used to protect the logos of certain fashion works, but designs can be, and frequently are, copied. Despite access to potential means of seeking protection through patents or copyright, very few players in the fashion industry seek out this protection.
The authors cite Simmel on Fashion in his description of how, "as fashion spreads, it gradually goes to its doom" to propose two mechanisms or particularities about the fashoin industry that drive the industry away from IP protection. The first is induced obsolescence which essentially means that the fashion industry benefits from having things rise and fall quickly in popularity as a way of making clothing or fashion obsolete and driving customers to new products in order to stay in fashion. Because things become less fashionable as they become more widespread, piracy has the benefit to high-fashion innovators of helping spur the obsolescence of goods and the need for new fashions or innovations. In the words of the authors, "the fashion cycle is propelled by piracy."
The second mechanism is anchoring. The authors use the term to describe how customers can tell when fashion has shifted by allowing emergent themes to become trends. It is the trendiness of fashion that drives new fashions into popularity and, the authors suggest, these trends are only possible because widespread borrowing, copying, and piracy (in more or less egregious forms) is widespread in the community.
The authors explore the possibility that fashion may not be in an equilibrium but may not have access to the law or lobbying power. Using data from Europe where there is limited protection for designs -- and where is systematically not used -- the authors conclude that this is unlikely. They walk through a series of alternative explanations or alternative models (often in similar areas like architecture) and explain why it may not be a good fit for their setting.
Their final section focuses on the concept of "copyright's negative space" and they highlight a series of other examples of creativity and innovation that have flourished outside of the context of IP protection. These include furniture designs, tattoos, databases, free and open source software, and a number of other examples.
Theoretical and practical relevance:
The article was summarized in a short New Yorker article by James Surowiecki. It has been cited more than 140 times in the 4 years since it was published and also resulted in a follow-up piece by the authors in the Stanford Law Review called The piracy paradox revisited.