And a Fashionista Shall Lead Them
posted by Frank Pasquale
In honor of Chloe’s triumph on Project Runway (design at right), I thought I’d blog about Chris Sprigman’s and Kal Raustiala’s brilliant paper, The Piracy Paradox: Innovation and IP in Fashion Design.
“Soft IP” rights (as copyright and trademark are often called) have grown enormously. In many industries, copyrightholders are insisting on the right to control even fragments of works. Trademark holders can protect not only their marks, but also aspects of the packaging and design of their products. Promoters of this trend claim that without strong rights, no one would invest in music, books, marks, or other easily copiable expression.
But IP protection apparently isn’t that necessary in the fashion industry. In couture, “copying is rampant . . . [y]et innovation and investment remain vibrant.” The authors attempt to solve this “piracy paradox” by describing how the “snob value” of high fashion is preserved via “induced obsolescence.” As a design gets copied, its value falls precipitously–driving early adopters to buy newer designs.
The article hits some sublime points, such as Jean Cocteau’s observation that “art produces ugly things which frequently become more beautiful with time. Fashion . . . produces beautiful things which always become ugly with time.” But it sidesteps some normative questions about induced obsolescence that might point to new directions for IP scholarship…
First, couture appears to be a positional good–that is, its value depends at least in part on how it ranks compared with other designs. Robert Frank has done terrific work detailing the drawbacks of positional goods (in both economics and law review literatures). Drawing on the economic theory of auctions, he demonstrates that individuals can waste a lot of time and money in “positional arms races” for status. As they strive for status via “observable goods,” they end up with longer commutes, more debts, and other impediments to happiness.
Now of course, the people at the top of the fashion food chain probably have money to burn. And as any careful reader of Us or People knows, there are many ways a frugal fashionista can imitate high style cheaply. But perhaps many people are choosing not to, and are indulging in shopping sprees that express little more than the capacity to outspend their reference group. Is there any way to distinguish between the aesthetic value of this sort of conspicuous consumption, and its mere signification of the buyer’s purchasing power? I don’t know if there is, but perhaps we should at least try to disaggregate these values before taking Virginia Postrel’s celebration of the “rise of aesthetic value” too seriously.