Law & Economics, the signature legal theory of the 1980s (with its foil Critical Legal Studies), has been applied to everything from accidents to ownership -- and now fashion knockoffs.
The heart of the law & economics approach to fashionable knockoffs is the fashion cycle theory, which has been around since at least the 1920s. In brief, Kal Raustiala & Chris Sprigman argue that the relative lack of intellectual property protection for fashion is justified by a persistent equilibrium that accomodates both creativity and copying. (I presume that in the final draft they will acknowledge our many scholarly predecessors who have also analyzed the fashion cycle.) Since most IP professors have spent the last decade arguing that IP law had gotten out of hand and overprotection abounds, the tendency is to celebrate this pocket of low protection.
This work, however, doesn't reflect (1) an accurate history of the fashion industry's persistent attempts to gain legal protection over the last century, (2) extralegal attempts, including the leveraging of social norms, to control copying where law was unavailable, (3) the role of longstanding foreign protection in the development of the global fashion industry, (4) the redistributive results of this relative lack of protection, (5) recent pressures on the fashion industry resulting from the flow of information and the changed loci of production, and, most importantly, (6) the embedded cultural attitudes (including the roles of gender and class) that have contributed to lesser protections for the clothing industry in the U.S.
In my own reseach (draft to follow), I have incorporated recent approaches to law -- informed by Cultural Studies, Cognitive Science, and Legal History -- to explore the lower protections provided to the fashion industry. My goal is not necessarily prescriptive; that is, I didn't set out to "prove" that low protection is good and high protection bad, or vice versa. In fact, I believe that this binary approach oversimplifies the field of intellectual property law.
Instead, my theoretical approach to intellectual property protection has been to examine less protected areas of human creativity and to compare them with highly protected but equally creative areas. (Hence my book on collective cultural production.) This comparison, combined with a bit of history, reveals the cultural preferences at the heart of intellectual property law and can provide a starting point for rationalizing the system. Consider the fact that neither poetry nor fashion needs protection to exist, yet one has full copyright protection and the other does not. It's important to understand why.
For the field of fashion design, an analytical approach that takes seriously both the industry (and its various players) and the (typically female) customer is long overdue.
As a woman law professor who has kept a file on law & fashion for nearly a decade, but was told not to write on such a "frivolous" and feminine topic (see Kenji Yoshino's Covering, which he and I discussed in this context recently), I'm very pleased that the law guys are catching up -- so kudos to Kal & Chris. And thanks for sending me your paper. The more voices, the more seriously the topic will be regarded. Finally.