Faster Fashion: The Piracy Paradox and its Perils

Abstract

Fashion today is faster than ever and knockoffs more common, but fashion copying is nothing new. For over a century the fashion industry has bemoaned the ubiquity and ease of copying. Writing in 1916, one industry observer explained the problem: Despite “the expense of thousands of dollars to create a design…copies appeared within forty-eight hours. The only recourse was multiplicity and rapidity of design at such frequent intervals that competitors would lag behind.” Copyists could not be defeated in the marketplace or in court. They could only be outraced.

The story is unchanged today. Seeking to explain how the fashion industry curiously survives, and even thrives, in the face of extensive copying that IP theory suggests should destroy the incentive to create, in 2006 we introduced the concept of the “piracy paradox.” The legal freedom to copy designs paradoxically helps, not harms, the fashion industry and makes the industry more, not less, creative.

In the years since we published The Piracy Paradox, others have pointed out the ill consequences of ever-faster fashion cycles--firms such as Fashion Nova introduce 600–900 new items per week--including environmental destruction, the exploitation of labor, and the wasteful status competition. In this article, part of a special symposium on The Piracy Paradox published by the Cardozo Arts & Entertainment Law Review, we offer some general comments about these critiques of fast fashion and their connection to foundational questions of intellectual property in the apparel industry.

Keywords: fashion, copyright, trademark, copying