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To Copy or Not to Copy, That Is the Question: The Game Theory Approach to Protecting Fashion Designs

Fashion designers in the United States, unlike those in many for-
eign jurisdictions, enjoy only limited intellectual property protection
for their creative endeavors. The American patent, copyright, and
trademark systems each present obstacles to obtaining protection for
fashion designs. Copyright and trademark law protect certain elements
of fashion designs, such as unique fabrics and logos, but the protections do not extend to the general shape and appearance of a fashion
design. Moreover, copyright and trademark law do not grant protection to products and features that serve a utilitarian purpose. On the
other hand, patent law presents difficult statutory barriers; a design
must be novel and nonobvious, and can only gain protection after a
lengthy litigation process. The result is a gap in intellectual property
protection that leaves fashion designers vulnerable to a stitch-by-stitch,
seam-by-seam replication of the designs they labor to create.

While the duplication of fashion designs is not a new phenomenon, the practice has recently received increased attention due to
high-profile lawsuits by famous designers including Anna Sui and
Diane von Furstenberg against low-end, mass retailers such as Forever
21. The defendants in these cases are known as “fast-fashion” firms for
their ability to replicate original designs at alarming speed, on a large
scale, and at low cost. Many fashion designers disapprove, claiming
that fast-fashion firms’ capabilities of quickly copying original designs
and bringing those copies to market deprive original designers of profits and stifle design firm creativity. The fashion industry, represented
by the industry group Council of Fashion Designers of America
(CFDA), has sought Congress’s assistance to rectify the longstanding
dearth of intellectual property protection for fashion designs. The
Senate introduced a proposal to amend the copyright statute known as
the Innovative Design Protection and Piracy Prevention Act (IDPPPA)
last session, and the House of Representatives recently introduced the
same proposal.

In this Comment, I address the normative question of the optimal
scope of intellectual property protection for fashion designs through
game theory’s unique perspective of law and economics. I do so by
developing a game theoretic model that evaluates the impact of greater legal protection on the incentives of fashion designers to bring lawsuits to protect their designs and of fast-fashion firms to make replicas
of these designs. Analyzing the incentives at play will allow me to predict whether the IDPPPA in its current form will deter fast-fashion
firms from replicating designs, encourage innovation, and maximize
welfare in the fashion industry.