Kal Raustiala, Professor of Law at UCLA, has released a new paper titled Knockoffs and Fashion Victims. Raustiala, in the paper, questions whether what he terms as the “property rights theory” underlying copyright is applicable in the field of fashion:
A different way to ask this question is: how do fashion designers remain so creative? To a large degree, the answer is that creativity in fashion thrives due to copying, not in spite of copying. Extensive copying accelerates the fashion cycle, rendering once-desired designs to the apparel scrapheap. And extensive copying allows trends, the cornerstone of contemporary fashion, to develop and spread.
In this way copying provides the functional equivalent of the striking new feature on a cellphone–the feature that makes a customer toss out a perfectly usable item in favor of a new one. In fashion, of course, the new design is not an improvement so much as it is a distinction. But this is a distinction with a difference: for many consumers, a key appeal of any garment is whether it sends the right kind of signal. As the garment’s design spreads via copying, the distinction offered by the design is lost—and the shopper is ready to buy a new design. The property rights theory of copyright has virtually no place in this story. And subsequent chapters will show, fashion is not alone in this regard.