Vogue Juridique & the Theory Choice Problem in the Debate over Copyright Protection for Fashion Designs

Michael G. Bennett, Nick Buell, Jason Cetel, and C. C. Perry

As a growing commentariat swarm has consistently pointed out in recent years, fashion designs, rendered as garments, present an intriguing puzzle to copyright law. Although creative expressions in tangible form, fashion designs do not receive copyright protection. Conventional theories of copyright—derived mainly from utilitarianism and classical Lockean labor theory—predict that this copyright null zone should detrimentally effect creative incentivization, resulting in significant diminishment of designer innovation. The copyright null zone is, therefore, heretically and savagely anomalous if we agree (as seems to be the case with the scholarly preponderance) that fashion design innovation rates appear high. How can this be explained?