Who’s Afraid of Forever 21?: Combating Copycatting Through Extralegal Enforcement of Moral Rights in Fashion Designs
Irina Oberman Khagi*
ARTICLE

 The full text of this Article may be found here.

27 Fordham Intell. Prop. Media & Ent. L.J. 67
Article by Irina Oberman Khagi*

ABSTRACT

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his Article examines the often underexplored theory of personality rights, or moral rights, as a justification for protection of intellectual property in the context of protection of fashion designs. Traditional forms of intellectual property protection have thus far proven inadequate to protect the overall design of an article of clothing or accessory; rather, most are only sufficient to protect portions of the design. Advocates for strengthened intellectual property rights regimes traditionally invoke utilitarian rights, or the need to provide an incentive for continued generation of new ideas. But these utilitarian theories appear to be less relevant in the fashion world, where copycatting actually may spur innovation rather than deter it. Instead, this Article examines justifications for intellectual property protection through the spectrum of the personality theory of property. According to this theory, recognition of the designer’s right to ban others from copying her design constitutes a recognition of the designer’s identity itself, and to deny the right constitutes a denial of this identity. However, it remains an open question whether fashion designers actually feel such personhood interests in their creations and, even if they do, whether such interests justify the costs to society of continued protection of the designer’s rights in her fashion designs long after she sells them to others. This Article analyzes existing moral rights regimes in the European Union to determine whether such enhanced legal protection has truly benefitted designers. The conclusion it draws from the case study is that designers do not often take advantage of the moral rights legislation in the European Union, and those who do are mainly larger fashion firms who arguably have minimal-to-no personal identity interest in their creations. Ultimately, this Article concludes that traditional forms of intellectual property rights regimes are overbroad and unwarranted, given the relatively small subset of the design community—such as Etsy or other do-it-yourself (“DIY”) communities—whose moral rights in their creations warrant legal protection against copycats. Rather than enacting legislation or enhancing the scope of existing intellectual property rights, this Article proposes that such design communities cultivate extralegal methods of combating copycatting, primarily by inculcating norms of shunning and shaming copyists and thereby rendering copying unprofitable.

* Associate, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP; Clerk, Judge Timothy Tymkovich, Tenth Circuit Court of Appeals; J.D., Harvard Law School; B.A. Stanford University. I would like to thank Simon Khagi for his support and encouragement, and Innokenty Pyetranker for his wisdom and advice. I would also like to thank Professor Terry Fisher and my classmates at Harvard Law School for helping to inspire this Article.