Fashionable IP or IP for Fashion

Lisa Hedrick's note, Tearing Fashion Design Protection Apart at the Seams,1 addresses yet another mismatch between creativity and statutory incentives for creativity. She raises the quintessential question affecting all intellectual property: Would statutory protection for creativity be beneficial? She insightfully concludes that proposed legislation for fashion design protection may, if enacted, have an illusory effect.Hedrick and other commentators are quite persuasive in their analyses of existing intellectual property law.2 They conclude that fashion has no meaningful statutory protection.3 The paradox relating to the level of creativity in the fashion industry is explored by Professors Raustiala and Sprigman:Why, when other major content industries have obtained and made use of increasingly powerful IP protections for their products, does fashion design remain mostly unprotected? That the fashion industry produces high levels of innovation, and attracts the investment necessary to continue in this vein, is a puzzle for the orthodox justification for IP rights.4The Constitution provides that Congress shall have the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."5 Congress has opted to exercise its authority in limited, but nevertheless expansive, ways. Referencing committee reports accompanying the 1952 Patent Act, the Supreme Court noted the intent of Congress to have "anything under the sun that is made by man" as statutory subject matter for patents.6 Although the patent laws are limited in that the invention needs to be useful, novel, and inventive,7 the patent grant8 is the same for a pharmaceutical that may have cost a billion dollars to discover and develop as it is for the proverbial better mousetrap. Similarly, copyright laws protect certain creative works that are not useful articles,9 and the exclusionary right is the same for a work created in ten seconds as it is for one that involved a lifetime-it is the same for a soda can label as for a literary masterpiece.10 The protection provided by copyright, like patents, is blind in its legislation to the industry and cost of development.Patents and copyrights are thus very blunt tools available to Congress for forging policy pertaining to creativity and innovation. But have these blunt statutory tools worked? Perhaps part of the answer lies in defining the criteria for determining whether a tool has worked. If one takes the natural rights labor theory view of John Locke, then the policy goal is focused on the individual who has made something that is his own.11 A utilitarian theory, on the other hand, focuses on maximizing the benefits to the community.12Regardless of the economic theory used, there is no controlled experiment to prove or disprove the impact of statutory intellectual property. Commentators have therefore heavily relied upon anecdotal evidence.13 Consequently, the debate continues as to whether or not patents and copyrights are achieving whatever policy goal is selected.14Over the past two centuries, the United States has changed from an agrarian economy to an industrial economy to what some call a service economy.15 The patent statute has been called upon to address technologies that could not have been even fathomed in 1790 such as iPhones and instant mashed potatoes. Yet, today's patent statute does not differ substantially from the first patent statute enacted in 1793.16 The copyright statutes have proven not to be as malleable to changes in technology and have been periodically amended to explicitly address changes in technology such as video tapes, cable television, computer chips, e-books, and the internet.17 The legislative responses to these technological changes have typically not been single-industry-focused and Congress has availed itself of counsel from broad based study groups. …