2020 has not been a good year for anyone, but this holds especially true for fashion industries. With most people being stuck at home and zooming in from their bedroom, little incentives are left for them to still purchase in-style clothing – pants, skirts, and shoes almost never appear on a call with friends or colleagues anymore, a nice pair of sweatpants are all we need. What really happened was, people hardly thought about fashion when the COVID-19 crisis first started, until two months later, the tragic news of J. Crew’s downfall hit all of white-collar workers overnight. Then we started to reminisce about that shirt, skirt or coat we used to wear to work before the Work From Home part started. But the storm did not stop there. In May alone, eight major fashion brands filed for chapter 11 bankruptcy protection, including J.C. Penny and J. Hilburn.

Fast fashion has long been thought of as a cash cow in the fashion business. The most famous example being European fashion retailer Amancio Ortega, the owner and founder of ZARA, was named as one of the richest men walking on earth.  But amid the disastrous pandemic, the collapse of some well-loved fashion empires brings us back, yet again, to the long-debated intellectual property law paradox. Should fashion design be copyrighted?

Contrary to Europe’s friendly approach to designers, and despite international fashion titans’ advocating  for copyright protection for its brands and designers, IP law in the United States has never extended copyright protection to fashion designs. The best arguments for making fashion designs copyrightable can be summarized as fairness, and incentives. Copyright, like all other kinds of intellectual property rights, is a spices of modern property law. The famous seventeenth century British philosopher, John Locke, famously pointed out in his labor theory of property that property rights existed in the first place because people invested labor in creating or discovering the property, and thus should be awarded ownership. The exertion of labor upon natural resources, Locke believed, allows labor to enter into the object, thus such object become the property of that person. This idea apparently holds true for fashion designs. Fashion designers spend months, if not years, working on new patterns or styles for clothing. Many great designers would go to great lengths, sometimes even extremes, to search for a spark of epiphany from Aphrodite. Locke would view those efforts as labor, and therefore, designers should be granted property rights. A slightly more free market-oriented idea holds that granting copyright ensures the designers that they will get the credits for investing in those labors, and sometimes, that credits come with sweet financial returns. Self-inspired designers aside, without the reward, fewer common designers will be motivated to invest the time and energies needed for the job.

The rationales against copyright protection for all fashion designs are perhaps less pronounced. Best illustrated in Professor Scott Hemphill’s article The Law, Culture, and Economics of Fashion and Professor Christopher Jon Sprigman’s article The Piracy Paradox Revisited, fashion trend can be understood in a “differentiation and flocking model.” The consumer can either use fashion to differentiate themselves from other people, or to immerse into a group identity. Professor Hemphill persuasively argues that, while line-to-line copying could be detrimental to the differentiation function of fashion, derivative reworking of original fashion design could be beneficial to the fashion industry, as it will enhance flocking functionality whilst not hurting desires of differentiation as much.  Professor Sprigman argues for the direct opposite: knockoffs are good for the fashion industry. For one, copying contributes to a process of induced obsolescence, that is, helping a design to immerse into mainstream fashion. Secondly, knockoffs help anchor a trend; if one design works well, it will quickly be accepted, and in turn induce the industry to chase for the next trend. Copying helps expedite the consumption cycle.

To me, both arguments are persuasive. Therefore, applying courts’ commonly used methodology, cost-benefit analysis, in deciding whether we should afford fashion designs copyright protection is inevitable. A related question then would be, should we have a clear-cut one-conclusion-for-all type of bright line rule, or a multifaceted,  case-by-case standard. I would argue for the latter for two major reasons.

First, the fashion industry is much more scattered than most  consumer industries. Its emphasis on designers’ creativity makes the industry composed of not only high-end fashion titans like LVMH and Chanel, but also fast fashion brands including ZARA and H&M, and individual designers, who are usually not adequately represented by lawyers and lack sufficient market power to have a distinct voice.  Secondly, in the age of Coronavirus, the financial instability of the industry might warrant some extra protection to some designers but not the others. .  Since retail sales provide more than 4 million U.S. jobs in a normal economy, there might be a public interest argument for affording the fashion companies more IP protections in the hope that those benefits will in turn reach their employees.

Therefore, a potential solution I wish to entertain is this: based on the multi-faceted test, impose a “hot news”-like quasi-copyright on certain designs. As ruled in Int’l News Agency v. Associated Press, hot news of the day was granted some quasi-intellectual property rights, which afford the first to report a short period of exclusive rights.[1] . Since the fashion and news industries share mutual goals to reach “the mass” and to incentivize private participants in the industry, maybe we should adopt the “hot news” rule for fashion designs as well.

The subsequent question is which designers get copyright protection. I would humbly propose a multi-factor test which considers 1) the originality of the design, 2) the anti-competitive effect should such design be copyrighted, 3) the purpose of the copyright, 4) the market power of the applicant, and 5) such copyright’s effect on differentiation and flocking model.  This test can serve as a way to distinguish the piracy and exploitation act of some large fashion brand or malign smaller designers, from some non-elite designers and their sudden sparks of epiphanies. 

The above are, of course, only my personal opinions. I am very interested in your take on this long-debated issue.

[1] See Int’l News Agency v. Associated Press, 248 U.S. 215 (1918).

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