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November 13, 2006

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priscieve

IPRs are happening in food (at least at the seed level) and I'd argue they would happen for any field where uniqueness/novelty/stability/distinctness can be defended. Within the fashion industry, I'm trying to think of how in the world anyone can scientifically prove all these. There would need to be an objective, systematic assessment of the clothing in order to prevent another fashion company from unwittingly 'copying' the fashion.

If I owned a fashion line, in order to be sure I wasn't copying, I'd come up with the craziest designs possible and then no one would wear it...or would they? Because everything else would be so crazy we would really have the catwalk fashion finally in the streets!

Frank

As for "Why do these plainly creative endeavors fall in the negative, rather than the positive, space of copyright?"

It would be interesting to compare the legal costs of different creative industries. We know that in the classic music business model, about 5 to 13 cents of every dollar in CD sales went to the artist as royalty. (I hope I'm remembering This Business of Music right!) But how much of the cost of the CD went to lawyers--specifically, IP lawyers?

Perhaps its very difficult to parse out IP law costs from general legal costs. But it strikes me that one plausible explanation of the fashion situation is that there is not sufficient consensus among industry players that the gains from IP protection would outweigh the costs of enforcement.

Tony Sarabia

There is at least one other important concept with significant impact upon the protection and creation of apparel. I would refer to it as “historical cycling” to distinguish it from the fashion trends and cycles you describe. By “historical cycling” (for ease I shorten to “cycling”), I refer to the recurrence of trends over many years. For example, single breasted and double-breasted suits which swing in and out of fashion. The impact of cycling is extremely significant because it means that what is often claimed to be original by haute couture designers - and you correctly recognize as trend setting - is not original. Thus even under a more protective IP regime, cycling would, certainly under a copyright approach, bar protection to the creations of trend setters to the extent that the trend setters themselves dipped in the well of prior fashion - which is very common. To put it another way, cycling would eviscerate quite a bit of a more protective IP regime.

Because of cycling, the impact of stronger IP protection under a copyright regime would be substantially reduced. The failure to consider cycling causes both the proponents of stronger IP legislation and the opponents (perhaps your paper) to overestimate the impact of a stronger IP regime on creativity in the apparel industry.

Another important concern is the impact of existing IP protection. While there is no copyright protection for the functional aspects of clothing, there is copyright protection for nonfunctional aspects, such as fabric patterns and decorative elements. There is also protection for trademarks. These types of protection loom very large in the fashion world. I would be concerned that describing apparel as a low IP regime industry understates the significance of the existing protection. Consider a comparison with computer chips. One may get a patent for a chip with a certain function - very important protection because chip consumers buy mainly based on functionality. But if the chip were a suit, protection for the pattern on the silicone would be more important because apparel consumers buy mainly based on appearance. Apparel companies can get protection for the appearance of their fabric. This suggests that nonfunctional protection plays a relatively larger role in industries in which appearance is a central consumer criterion.

It may also be the case that trademarks play a larger role in impulse purchases such as clothing, than in larger consumer goods. Consumers spend less time anaylyzing and comparing characteristics and are more likely to use trademarks as a guide to relative quality. Clothing’s place as an impulse purchase gives greater weight to the importance of trademarks. A greater percent of purchases are probably based on Polo than on Intel.

Existing IP protection in the apparel business may be stronger then it appears.

I think the points you make, as well as the points above, apply to a variety of other industries in different combinations.

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