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The Framers of the Constitution granted Congress the power to create intellectual property rights as a way to “promote the Progress of Science and the useful Arts.” Today’s advocates for strong IP continue to argue that such rights are necessary. The orthodox argument for IP proceeds in three steps. First, artistic and literary works and scientific and technical innovations are often difficult and expensive to create—think of the poet in pursuit of the right verse, or pizza-fueled late nights spent programming a new video game, or the piles of money a pharmaceutical company spends in an often fruitless search for a new blockbuster drug. Second, once the author or inventor produces the first version of a work, others will find it quick and cheap to copy the work. Third, unless the law equips the creator with enforceable exclusive rights, the copyist, having invested nothing in the creation of the work, will outcompete the originator and deny her a return on her investment.
Our Virginia Law Review article, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design is about the challenge that the global fashion industry presents to this traditional justification for IP rights.
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By Rochelle Dreyfuss
Kal Raustiala and Christopher Sprigman do a wonderful job alerting us to a phenomenon they describe as “copyright’s negative space.” Given the continuous clamor for ever-broader intellectual property protection, identification of this space teaches lawmakers an important lesson: intellectual property rights may not always be needed to promote robust levels of innovation. In the appropriate environment, competition can be quite a satisfactory way to spur creativity.
The trick lies in identifying the factors that produce the appropriate environment. As the authors tell it, negative space works for the fashion industry because the goods send status (positional) signals, these signals decay over time (obsolescence), and both the status and the decay are, in a sense, caused by the free-wheeling copying made possible by the absence of intellectual property protection (anchoring). At first blush, these appear to be rather unique conditions, raising the question whether there is less here than meets the eye. The authors suggest several other endeavors where a similar dynamic may hold (cuisine, furniture design, hairstyles, and perfume). But with all due respect to fashionistas, these fields are not of compelling social value.
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By Randal C. Picker
For me, HBO’s Sex and the City was eye-opening. I live a simple and in some ways sheltered life, and I had no idea about the seemingly infinite possibilities and the full range of experimentation in . . . fashion. Fashion, of course, is what the show was really about—with a little sex thrown in here and there—and I learned new words week by week: Dolce & Gabbana, Jimmy Choo, Manolo Blahnik. But as my fashion vocabulary is withering, I jumped at the Virginia Law Review’s invitation to participate in its new online venture and comment on Kal Raustiala and Chris Sprigman’s The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. The paper is a fun read—even for those of us who are fashion challenged—so I flipped through a recent Vogue, popped The Devil Wears Prada into the DVD player, and I am once again ready to separate my Lagerfelds from my Diors.
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