Fashion Design : The Paradox and the Public Domain

Fashion Design

  Although some scholars argue that today fashion design should be protected under intellectual property rights, some scholars make arguments that the protection of fashion design is meaningless. Only in an environment of weak IP protection of fashion design, the public domain can be extended. One of the most famous arguments is called “piracy paradox”.

A. Piracy Paradox Theory and Fashion Design

  Since the born of intellectual property rights, it has been developing with balancing the private rights and public interests. However, usually it is hardly to find a proper balance point between the private rights and public interests in practice. Piracy Paradox argues that scholars shall pay more attention to the public interests and less attention to the private rights to fashion design protection. In other way, “[w]eaken individual designers and strengthen the industry and drives its evolution.”



  Piracy Paradox states that piracy is paradoxically beneficial to the fashion industry in the long run. Copying is helpful, not harmful to the fashion design. Rustiala Kal and Christopher Springman argue that first, copying of fashion design contributes to a process of “induced obsolescence” . That is to say, copying helps to diffuse fashion design into the mainstream— “where they lose their appeal for fashion cognoscenti”. Second, they argue that copying helps “anchor” trends. According to the theory, the function of copying fashion design is similar to the survival of the fittest. The best fashion design will be anchored while the common fashion design will be diffused. Therefore the innovation-diffusion circle offers innovation for the fashion designers to create new fashions. The fundamental of the piracy paradox theory is “the fashion industry operates best in an environment of comparatively weak IP rules.” That is to say, there is no need to protect fashion design under IP law.


  This theory once worked well before the generation of the real-time information system. It is true that without proper protection of fashion design, the fashion industry has been stable for many years. It’s true that firms continue to make significant investments in the production and distribution of new fashion design although others are perfectly to copy . However, the appearance of the Internet quickens the information diffusion. The difference between current fashion design copying and fashion design copying several decades ago is the time that the copying can reach the market; the knockoffs can reach the market at the same time or even before the originator. Through the wonders of digital cameras, the Internet, and mass-production facilities in faraway lands, knockoffs can come onto the discount stores seemingly before the model. The perfect innovation-diffusion circle is destroyed by the FAST-fashion infringers.


   In the piracy paradox theory, Raustiala Kal and Christopher Springman present two kinds of appropriation. One is “line-by-line copying”. The other is “the creation of derivative works” . Although both the two terms are considered appropriation under the piracy paradox theory, the two terms should be distinguished today. Line-by-line copying is misappropriation and the creation of derivative works is an appropriation. Consumers expect to see line-by-line copying because they can pay less money to get the same fashion product. However, the line-by-line copying of fashion design is stealing. Like copying a book written by other authors, like copying a song sung by others, like copying a painting draw by others, the fast fashion infringers reap from where another has sown. Such conduct cannot be tolerated under today’s IP law.


   As mentioned before, fashion design is different from the other traditional IP subject matters, as fashion design has less creativity compared with copyright or patent subject matter. Therefore “the creation of derivative works” is an appropriation since the derivative works satisfied the requirements of new as a fashion design. “Derivative means a work that appropriates certain design elements of a modal design, but is nonetheless visually distinguishable to the average observer.38” The derivative works partake of a common design  element and enriched the shared design vocabulary. The creation of derivative works drives the fashion cycle.
  Therefore, the “piracy paradox” theory is not proper for the fashion design protection under current situation.

B. Public Domain and Fashion Design


“If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.” —George Bernard Shaw



  Public domain refers to works, ideas, and information which are intangible to private ownership and/or which are available for use by members of the public. Intellectual property rights not merely produce innovation by rewarding creators. Intellectual property rights create a feedback mechanism that dictates the contours of information and innovation production. The scope of IP infringement was expended since today the Internet makes copying easier, cheaper and in an unparalleled global scale. Therefore we must face the greater danger with expanded protections on IPR. Although such expansions may have reduce the rights that citizens thought they had in practice—fair use, low-level noncommercial sharing among friends, resale .
However, without an increase in private property rights, “cheaper copying will eat he heart out of our creative and cultural industries.” The situation is exactly the same when dealing with fashion design protection.


  The goal for IP protection of fashion design is offering incentives to fashion designers. The expected result is creating more original and creative fashion design. And as the protection expired, more fashion design return to the public domain and enrich the public domain. Therefore we cannot allow such cheaper copying eat the heart of the creative of fashion design. In order to protect the future extension of public domain against the Internet Threat, expanding the IP protection to fashion design is necessary.



  However, as mentioned before, fashion design is different from other traditional subject matters of IPR. Because of the little creativity, fashion designers need to “borrow, imitate, revive, recombine, transform and share design elements” when create new a fashion design, the creativity in fashion design is so little, some copying should be allowed in the fashion design. If all kinds of copy in the fashion design were forbidden, the consequence would be stifled all the creativity of the future fashion design . Because fashion designers need to worry about any potential infringement or to pay for the royalties for every elements in the fashion design they used. Preventing all kinds of copying would be an abuse of fashion design protection. No protection of fashion design will reduce the public domain, and vice versa, the excessive protection of fashion design will also hinder the public interests. Fashion designers need to freely use the elements in the public domain created by prior fashion designers.