Abstract
Recently, as different projects aiming to define and reinforce property rights in the fashion industry have been elaborated and discussed, a lot of papers have been dedicated to the question of property rights in this industry. Our paper considers the problems from a specific point of view; it focuses on the relation between property rights and creativity. If property rights allow the allocation of the majority of standard industrial goods without any special difficulty, however, when they are applied to creative goods, new problems arise. Then, for us, the persistence of a low system of IPRs in the fashion industry does not mainly derive from its efficiency but from the characteristics of the inputs that are used in the creative production process. They constitute strong constraints for defining, entitling, legitimating, enforcing, valuating and exchanging property rights. Thus, the different economic actors develop different kinds of strategic behaviour in order to obtain earnings and can try to protect copyrights, trademarks, new assets, old assets (heritage), private or collective assets, and so on. The institutional characteristics of this specific industry—such as the models of management, the type of ownership, the size of the firms, … lead to different historical models of management through IPRs. Peculiarly, the financial groups that integrate fashion into the new luxury industries currently try to implement new IPRs and to move towards a stronger system of IPRs but the management model of the street fashion puts an obstacle to this project.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
We thank the anonymous referee who sent us detailed remarks that obliged and allowed us to reinforce the quality of the paper by considering new substantial points on Law and Economics.
The Copyright Act, enacted in October 1976, provides the basic framework for copyright law in the United States. This Act and the subsequent amendments to copyright law are contained in Title 17 of the United States Code. Hereafter, we denote it as U.S. Copyright Law.
Similar bills intended to protect fashion designs were introduced in the 109th Congress (H.R. 5055, in 2006) and the 110th Congress (H.R. 2033 and S. 1957 in 2007), but they were not enacted.
For an analysis of these two bills, and their differences, see Yeh (2010).
At the European level, this approach was established with the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.
In the First part of the Code (“literary and artistic property”), 1st book for “Copyright”; in the Second part (“Industrial property”), 5th book for “Designs and models”.
For a more detailed history of design protection in France, see for instance Schmidt-Szalewski and Pierre (2007, 146–147).
Codified in the 7th book of the Code of Intellectual Property.
The Nice Classification is an international classification of goods and services applied for the registration of trademarks. The Nice Agreement concerning the International Classification of Goods and Services established it for the Purposes of the Registration of Marks concluded in 1957. The current edition of the classification (the ninth one), consisting of a list of 35 classes, entered into force on January 1, 2007.
The Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs initiated the harmonization process of national legislations on design protection, but the designs still had to be registered in the Member states with the competent authorities.
i.e. “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation” (Regulation no. 6/2002, article 3).
For more details, see Schmidt-Szalewski and Pierre (2007, 459–518).
153 countries are members of the WTO.
The adaptation of the TRIPs Agreement in French law results from the law no. 96–1106 of 18 December 1996. At the European level, the WTO agreement was passed by the Council decision no. 94/800 of 22 December 1994.
56 countries are parties of the Madrid Agreement.
Revised several times: at Berlin in 1908, at Rome in 1928, at Brussels in 1948, at Stockholm in 1967, and at Paris in 1971.
57 countries are parties to the Hague Agreement.
The Hague Agreement comprises three different Acts (the London Act, the Hague Act and the Geneva Act) each of which consisting of a distinct set of legal provisions. The Geneva Act signed on 2 July 1999 and operational on 1 April 2004 is the latest one. The European Community acceded to the Geneva Act of the Hague Agreement on 24 September 2007, and the Act entered into force within the European Union on 1 January 2008.
In their registers of designs, offices of registration, as the International Bureau of the World Intellectual Property Organization (WIPO), and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM), use the Locarno Classification consisting of a list of classes (32) and subclasses (219). The Locarno Agreement Establishing an International Classification for Industrial Designs was signed at Locarno on October 8, 1968 and amended on September 28, 1979. The current edition of the classification (the ninth one) entered into force on January 1, 2009.
Most of registrations concern products of class 6 (“furnishing”) and products of class 9 (“packages and containers for the transport or handling of goods”).
Another problem is to know if the audience will agree with the previous institutional choices.
Barnett et al. (2010) suggest a taxonomy of imitation strategies in the fashion market based on three characteristics: mark, design and quality. According the degree of replication of these three characteristics, three main strategies are identified: “horizontal imitation” (equivalent to “borrow” or “reference”), “legitimate vertical imitation” (corresponding to “knockoffs”) and “illegitimate vertical imitation” (such as “fakes” or “counterfeits”).
Goods which mix creative production and technical properties simultaneously obey to the non-incremental property of creativity and to the incremental property of technology, in proportions related to the degree of the incorporated creativity. A research and development process is often closer to a standard production process than creation. The investment in R and D gives a probabilistic result. Products normally follow one another in a better way: the last version of software corrects the former bugs and improves some functions; the new type of car introduces some improvements. For creative goods that include technology improvements are possible: in the luxury industries, the “carré Hermès” silk or the Vuitton luggage is improved by new raw materials and more sophisticated treatments…
The value of the brand image is especially important for some products in the luxury goods industry such as perfumes. In the case of the perfumes of the French Haute Couture firms, the value of raw materials represents less than 10 per cent of the price; the greatest value is imparted by the brand image and the general image of French luxury goods.
In particular with the Arsenal case (case C-206/01, Arsenal Football Club plc v. Matthew Reed, Judgment of the European Court of Justice (ECJ), 12 November 2002), the Opel case (case C-48/05, Adam Opel AG v. Autec AG, Judgment of the ECJ, 25 January 2007) and the Picasso case (case C-361/04P, Ruiz-Picasso e.a. v. OHIM, Judgment of the ECJ, 12 January 2006).
On the contrary, in the United States, the situation is quite different, mainly because no protection is currently provided to fashion designs. "Fast-fashions copyists", like the retailer Forever 21, provide products that are precise copies of American famous designers’s products (Hemphill and Suk 2009 1172–1174).
The Appendix 1 recapitulates the ways of protection in the two models.
References
Alchian, A. A., & Demsetz, H. (1973). The property right paradigm. The Journal of Economic History, 31, 16–27. (The Tasks of Economic History).
Atkinson, N. (2009). Copycats: A tale of two jackets, National Post Online, April 23, 2009 and May 13, 2009.
Barnett, J. M., Grolleau, G., & El Harbi, S. (2010). The fashion lottery: Cooperative innovation in stochastic markets. Journal of Legal Studies, 39, 159–200.
Barrère, C. (2007a). Les industries du luxe, des industries du patrimoine? Economie appliquée, numéro spécial “L’économie du patrimoine”, 2007/3.
Barrère, C. (2007b). Vers une théorie économique du patrimoine, une approche substantiviste. Economie appliquée, numéro spécial “L’économie du patrimoine”, 2007/3.
Barrère, C., Barthélémy, D., Nieddu, M., & Vivien, F.-D. (Eds.). (2004). Réinventer le patrimoine (pp. 109–120). Paris: L’Harmattan.
Barrère, C., & Santagata, W. (2005). La mode, une économie de la créativité et du patrimoine à l’heure du marché. Paris: La Documentation Française.
Benghozi, P. J., & Santagata, W. (2001). Market piracy in the design-based industry: Economics and policy regulation. Economie Appliquée, LIV(3), 121–148.
Caves, R. E. (2000). Creative Industries, contracts between art and commerce. Cambridge (Mass.): Harvard University Press.
Cox, C., & Jenkins, J. (2005). Between the seams, a fertile commons: An overview of the relationship between fashion and intellectual property (pp. 4–20). Durham, NC: Norman Lear Center Publication, Duke University Law School.
Fischer Fridolin (2008) Design law in the European fashion sector, WIPO Magazine, January–February, no. 1, 12–13.
Grumbach, D. (1993). Histoires de la mode. Paris: Le Seuil.
Hallet, M. (2008) Fashion design: Thinking across boundaries, University of Connecticut School of law, power point slides.
Hemphill, C. S., & Suk, J. (2009). The Law, Culture, and Economics of Fashion. Stanford Law Review, 61, 1147–1199.
Hetherington, S. L. (2001). Fashion runways are no longer the public domain: Applying the common law right of publicity to haute couture fashion design, 24 Hastings Comm. & Ent. L. J. 43 (2001).
Lehnert, G. (2000). A history of fashion in the 20th century. Cologne: Konemann.
Litman, J. (1994). Copyright in the twenty-first century: The role of the copyright office, The Exclusive Right to Read. 13 Cardozo Arts & Ent. L.J. 29.
Madison, M. J., Frischmann, B. M., & Strandburg, K. J. (2010). Constructing Cultural Commons in the Cultural Environment. Cornell Law Review, 95, 657–710.
Nelson, R. R., & Winter, S. (1982). An evolutionary theory of economic change. London: The Belknap Press of Harvard University.
North, D. (1981). Structure and change in economic history. New York: Norton.
OECD (1998) The Economic Impact of Counterfeiting. Report.
Ostrom, E. (1990). Governing the commons: The evolution of institutions for collective action. Cambridge: Cambridge University Press.
Raustiala, K., & Sprigman, C. (2006). The Piracy Paradox: Innovation and Intellectual Property in Fashion Design The John M. Olin Program in Law and Economics Working Paper Series, Year 2006, Paper 29, University of Virginia Law School.
Roux, E. (2001). La conciliation des contraires : créativité et rigueur dans la gestion de l’identité d’une marque. Communication au colloque La mode, un laboratoire de créativité, Turin, ICER, octobre 2001.
Rutter, J., & Bryce, J. (2008). The Consumption of Counterfeits Goods ‘Here Be Pirates’? Sociology, 42(6), 1146–1164.
Santagata, W. (2002). Cultural districts, property rights and sustainable economic growth. International Journal of Urban and Regional Research, 26, 9–23.
Santagata, W. (2006). Cultural districts and their role in developed and developing countries. In V. Ginsburgh & D. Throsby (Eds.), Handbook of the economics of art and culture (pp. 1101–1119). Amsterdam: North-Holland.
Schmidt-Szalewski, J., & Pierre, J.-L. (2007). Droit de la propriété industrielle, 4ème édition, Litec.
Shemtov, N. (2007). ‘Trade mark use’ in Europe: revisiting Arsenal in the light of Opel and Picasso. Journal of Intellectual Property Law & Practice, 2(8), 557–563.
Steiner G., (2001). Grammars of Creation. New Haven: Yale University Press. French translation: Grammaires de la création, Paris, Gallimard.
Terakura, K. (2000). Insufficiency of Trade Dress Protection: Lack of Guidance for Trade Dress Infringement Litigation in the Fashion Design Industry, 22 U. Haw. L. Rev. 569, 618–619 (2000).
Towse, R. (2010). A Textbook of Cultural Economics. Cambridge: Cambridge University Press.
WIPO (2005). IP and Business: Intellectual Property in the Fashion Industry, WIPO Magazine, May–June, no. 3, 16–19.
Yeh, B. T. (2010). Copyright protection for fashion design: A legal analysis of legislative proposals in the 111th congress, September 3, 2010, Congressional Research Service.
Author information
Authors and Affiliations
Corresponding author
Appendix
Rights and permissions
About this article
Cite this article
Barrère, C., Delabruyère, S. Intellectual property rights on creativity and heritage: the case of the fashion industry. Eur J Law Econ 32, 305–339 (2011). https://doi.org/10.1007/s10657-011-9230-2
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10657-011-9230-2