The piracy paradox revisited

Stanford Law Review

Volumn 61, Issue 5, 2009, Pages 1201-1226

  Raustiala, Kal ^a   Sprigman, Christopher ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF VIRGINIA   (United States)

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EID: 66749086516     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (73)

1. See, e.g., Anne Theodore Briggs, Hung Out to Dry: Clothing Design Protection Pitfalls in United States Law, 24 Hastings Comm.&Ent. L.J. 169, 194, 213 (2002);
2. Samantha L. Hetherington, 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, 71 (2001);
3. Laura C. Marshall, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14 J. INTELL. PROP. L. 305 (2007);
4. Shelley C. sackel, Art is in the Eye of the Beholder: A Recommendation for Tailoring Design Piracy Legislation to Protect Fashion Design and the Public Domain, 35 AIPLA Q.J. 473 (2007);
5. S. Priya Bharathi, Comment, There Is More than One Way to Skin a Copycat: The Emergence of Trade Dress to Combat Design Piracy of Fashion Works, 27 TEX. TECH L. REV. 1667, 1669-72 (1996);
6. Leslie J. Hagin, Note, A Comparative Analysis of Copyright Laws Applied to Fashion Works: Renewing the Proposal for Folding Fashion Works into the United States Copyright Regime, 26 TEX. INT'L L.J. 341, 364-66 (1991);
7. Karina K. Terakura, Comment, Insufficiency of Trade Dress Protection: Lack of Guidance for Trade Dress Infringement Litigation in the Fashion Design Industry, 22 U. HAW. L. REV. 569 (2000);
8. Jennifer Mencken, A Design for the Copyright of Fashion, 1997 B.C. INTELL. PROP.&TECH. F. 121201, http://www.bc.edu/bc-org/avp/law/st-org/iptf/articles/content/ 1997121201.html.
9. See, e.g., Michele Boldrin&David Levine, The Case Against Intellectual Property, 92 AM. ECON. REV. 209, 212 (2002);
10. Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, 24 CARDOZO ARTS&ENT. L.J. 1121 (2007);
11. Emmanuelle Fauchart&Eric von Hippel, Norms-Based Intellectual Property Systems: The Case of French Chefs, 19 ORG. SCI. 187 (2008);
12. Jacob Loshin, Secrets Revealed: How Magicians Protect Intellectual Property Without Law, in Law and Magic: A Collection of Essays (Christine A. Corcos ed., 2008), available at http://ssrn.com/abstract=1005564; Dotan Oliar&Christopher Sprigman, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008);
13. Mark F. Schultz, Fear and Norms and Rock&Roll: What Jambands Can Teach Us About Persuading People to Obey Copyright Law, 21 Berkeley Tech. L.J. 651 (2006);
14. Katherine J. Strandburg, Curiosity-Driven Research and University Technology Transfer, in 16 ADVANCES IN THE STUDY OF ENTREPRENEURSHIP, INNOVATION AND ECONOMIC GROWTH 97 (2005); Jacqueline D. Lipton, To © or Not to ©? Copyright and Innovation in the Digital Typeface Industry (Case Research Paper Series in Legal Studies, Working Paper No. 09-1, 2009), available at http://ssrn.com/ abstract=1311402; Fiona Murray et al., Of Mice and Academics: Examining the Effect of Openness on Innovation (Nov. 5, 2008) (unnumbered working paper, MIT Sloan School of Management), available at http://fmurray.scripts.mit.edu/docs/MADKS-Draft-11.05.2008. pdf; Charles Cronin, Genius in a Bottle: Perfume, Copyright, and Human Perception (unnumbered working paper, presented at UCLA Law School, Feb. 9, 2009). An early and exemplary recognition of the anomalous nature of fashion (and food) within IP is Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS&ENT. L.J. 29, 445 (1994).
15. Kal Raustiala&Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687 (2006).
16. Kal Raustiala&Christopher Sprigman, Where IP Isn't (UCLA Sch. of Law Pub. Law&Legal Theory Research Paper Series, No. 07-05, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=962736; Kal Raustiala&Christopher Sprigman, How Copyright Could Kill the Fashion Industry, New Republic Online, Aug. 14, 2007, http://www.law.ucla.edu/home/ News/Detail.aspx?recordid=1188 [hereinafter Raustiala&Sprigman, How Copyright Could];
17. see also Kal Raustiala, Fashion Victims, New Republic Online, Mar. 15, 2005, http://www.law.ucla.edu/raustiala/publications/ tnr/fasion-victims.pdf.
18. See, e.g., Jonathan M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, 91 VA. L. REV. 1381 (2005);
19. Susan Scafidi, F.I.T.: Fashion as Information Technology, 59 SYRACUSE L. REV. 69 (2008);
20. Jonathan M. Barnett et al., The Fashion Lottery: Cooperative Innovation in Stochastic Markets (USC Legal Studies, Research Paper No. 08-21, 2008), available at http://law.usc.edu/academics/centers/cleo/ working-papers/cleo/2008.cfm.
21. C. Scott Hemphill&Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 STAN. L. REV. 1147 (2009).
22. See Design Privacy Prohibition Act, S. 1957, 110th Cong. (2007); Design Privacy Prohibition Act, H.R. 2033, 110th Cong. (2007); H.R. 5055, 109th Cong. (2006). 8. Hemphill&Suk, supra note 6, at 1165.
23. To the extent that Hemphill and Suk argue that copyright should apply in order to protect consumers' interest in differentiation, that is an idiosyncratic reading of copyright law and policy. See Hemphill&Suk, supra note 6, at 1179 ("Fashion has the potential to afford a broad vocabulary for the expression of a vast range of possible messages. Conscious or not, people's fashion choices signify and communicate, with meaningful individual and collective valences. we have identified this dynamic between differentiation and flocking as the key to the experience of fashion in social life. People use fashion to signal individual differences while also partaking in common movement with the collectivity. This model has informed our analysis of the formation and function of fashion trends among producers and consumers.′). Unlike trademark, copyright is not designed to protect consumers against confusion or to protect the integrity of consumer purchasing decisions. Copyright is designed to provide authors exclusivity as needed for an incentive to create original works. within copyright's producer-focused incentives framework, close copies are harmful only to extent that they impair sales or reasonable licensing of the original, not because consumers might be less satisfied with what they have purchased per se.
24. Id. at 1188.
25. Id.
26. The possibility of a standard of this sort, limited to proscription of close copies, was originally raised at a congressional hearing on H.R. 5055. See A Bill to Provide Protection for Fashion Design, House of Representatives: Hearing on H.R. 5055 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 7 (2006) [hereinafter Hearings] (Rep. Bob Goodlatte asking whether language in bill should be tightened "to make it clear that it only protects against copies that are significantly similar and not those merely inspired by other designs"). we understand, based on private conversations with various industry participants, that in later negotiations between the CFDA and a number of important apparel industry firms, the possibility of a liability standard limited to "near exact" copies was raised by firms opposed to a broad "substantial similarity" liability standard, but was rejected by the CFDA as insufficient.
27. We are grateful to Hemphill and Suk for uncovering an insightful analysis of the fashion cycle from the 1930s. Helen Everett Meiklejohn, Dresses-The Impact of Fashion on a Business, in PRICE AND PRICE POLICIES 299, 338-39 (Walton Hamilton ed., 1938).
28. Hemphill and Suk do not directly address our "anchoring" arguments, and they offer no argument countering our model of how copies lower information costs and facilitate fashion purchases. This is an elision in the Hemphill and Suk Article, and one which weakens the foundation of their policy proposal. This is especially true because there is no reason to think that line-by-line copies are less effective than looser derivative works in reducing the information costs of apparel purchases. As a consequence, it is not enough simply to assert that line-by-line copies cause harm to innovation incentives-a claim that in any event we think incorrect. We also must consider whether eliminating line-by-line copies might harm the industry's ability to lower transaction costs and induce fashion purchases via the anchoring dynamic.
29. Hemphill and Suk note that "[g]oods that are part of the same trend are not necessarily close copies or substitutes." They later suggest, inaccurately, that we equate "trend-joining with copying." Hemphill&Suk, supra note 6, at 1153, 1161. We in fact agree that goods that are part of the same trend are not necessarily close copies or substitutes, and we do not equate (and never have equated) trend-joining with copying-although much trend-joining does in fact involve copying. in practice, trends vary widely but most incorporate a mix of what they would call close copies and a set of looser derivative works and, perhaps, even independent but similar creations. it is even theoretically possible for trends to develop without any copying: for many firms to alight on the same design by chance (or by tapping into an ineffable but powerful zeitgeist) and thereby create a trend. But much more common, we believe, is a trend that develops through some mix of copying, remixing, and derivative works.
30. The "parasitism" of fashion piracy plays out in ways that are analogous at a general level to the function of parasites in the natural world: parasites can harm individual organisms, but they also drive evolution and indeed have served as one of the primary forces inducing biological diversity. See CARL ZIMMER, PARASITE REX: INSIDE THE BIZARRE WORLD OF NATURE'S MOST DANGEROUS CREATURES (2000).
31. We also agree with Hemphill and Suk that normative claims that fashion is a wasteful or harmful status-reinforcing pursuit-the sort of considerations that undergird traditional sumptuary laws-are not very persuasive. We have taken a broadly liberal view about fashion design, in which more design choice-i.e., more innovation-is better because it gives consumers more options.
32. Hemphill and Suk note that differentiation and flocking ratios can vary, but they do not explore the implications of these observations for their model.
33. See Bjork.com images, http://www.bjork.com/db/images/103-lg-sfw. jpg (lastvisited Feb. 18, 2009).
34. Those with high D/F ratios are not necessarily runway fashion followers, however. Some are idiosyncratic stylists who only wear vintage clothes from the 1920s or favor unusual signature garments. But for many high D/F individuals, the ever-changing offerings of the high fashion industry serve as the primary palette for their sartorial self-expression.
35. Hemphill and Suk use Dr. Seuss's story The Sneetches as a parable to illustrate a separate criticism of our model in The Piracy Paradox. Hemphill&Suk, supra note 6, at 1182. in the story, an enterprising and amoral salesman named Sylvester McMonkey McBean encounters a group of bird-like beach dwellers, the Sneetches. Some Sneetches have stars on their bellies, and the star-bellies disdain their plain-bellied counterparts. The plain-bellies resent the social snubs they receive from the star-bellies; they are both treated and view themselves as a subordinate group. McBean, sensing an opportunity to play on the Sneetches' star-consciousness, deploys a machine that, for a fee, stamps stars on the plain-bellies. This angers and confuses the over-Sneetches, who find that their stars no longer distinguish them from the formerly plain- bellied. McBean responds by offering the original star-bellies admission-again for a fee- to a star-removal machine. Racial separation is thereby restored, but only for as long as it takes McBean to convince the under-Sneetches that plain bellies are now preferable, and that they must pay for removal of the stars he recently applied. The cycle of applying and removing stars continues until the Sneetches are out of money. And in the frenzy of star application and removal everything becomes jumbled-no one can tell who was originally starred and who wasn't. At the end of the story, the Sneetches drop their star-based discrimination and kumbaya reigns. in all, a hopeful ending-the Sneetches are suckers, but even suckers can learn. Dr. SEUSS, THE SNEETCHES AND OTHER STORIES (Random House 1961) (1953).
36. The Sneetches is obviously a parable about race. But the moral that Hemphill and Suk draw from The Sneetches is about microeconomics. The problem with the Sneetches, Hemphill and Suk say, is that they are bad at lifecycle pricing-i.e., they fail to understand that neither the star-based distinctiveness nor sameness they seek is fated to last for long. if only the Sneetches understood this, Hemphill and Suk suggest, they would not have paid McBean in the first place. Yet unlike the Sneetches, Hemphill and Suk assert, fashion consumers are competent lifecycle pricers. And as a result, they claim, the fashion industry does not profit in the aggregate from copying. Consumers will understand that a faster cycle means that the differentiation or flocking that they seek will be less durable, and therefore less valuable. As a result, copying might drive consumers to buy clothing more often, but it would also cause them to pay less for each purchase. We are very skeptical of this argument. First, Hemphill and Suk have raised empirical questions-do fashion consumers lifecycle price? do they do so effectively?-but they offer no evidence in favor of their claims. And even at a theoretical level the role of lifecycle pricing in fashion consumption is complex. From the perspective of the early-adopters, the ferreting out of an up-and-coming design may well be one of the pleasures of being a fashionista. So too is the experience of watching the masses tag along behind you: the fashion-forward may not want to dress like the fashion-follower, but the opportunity to watch everyone else try to catch up can be an important part of the return to investment in trend-spotting. So for an important class of fashion consumer, rapid style change is arguably not a cost, but a benefit, as it provides more opportunity both to engage in connoisseurship and to observe the followers emulating one's good taste. Whether or not fashion buyers lifecycle price is an empirical question the answer to which no one yet knows. But the foregoing suggests it may well be just as likely that if fashionistas lifecycle price, they do so in reverse-less durable trends are preferred. it is therefore also not clear that the fashion originator would benefit from longer trend cycles-the originator cannot charge more for something a consumer does not especially value.
37. We are not suggesting that no one is harmed by copying; we recognize that often substantial harm accrues to individual firms and designers. But in the aggregate we are skeptical that there is meaningful harm, and indeed we think in the aggregate copying is beneficial.
38. Hemphill&Suk, supra note 6, at 1193.
39. Id.
40. See, e.g., Hearings, supra note 12.
41. Not all copies are cheap, and not all originals are expensive. L'affaire Nicholas Ghesquiere is a good example. In 2002, Ghesquiere, young designer for the fabled house of Balenciaga, was lambasted for passing off a patchwork vest originally designed in 1973 by Kaisik Wong, a virtually unknown designer from San Francisco, as his own. See Booth Moore, Still Dazzling, L.A. TIMES, Dec. 16, 2002, at 11. Borrowing from a lesser-known designer is not unusual, nor is borrowing from the street (as in the frequent raiding of Japanese teen styles from Tokyo neighborhoods such as Harajuku). But the more common pattern, at least according to the major designers, is that their designs are appropriated and tweaked by lesser, or less successful, lights.
42. WILLIAM M. LANDES&RICHARD A. POSNER, The Economic Structure of Intellectual Property Law 166-209 (2003).
43. See generally Jonathan M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, 91 VA. L. REV. 1381 (2005). Consumers are also differentiated by time. High-valuing consumers get exclusivity and status for new designs for a short period of time-and this is a function not so much of the lack of copies (indeed, copies and derivative reworkings often appear very quickly) but the length of time it takes for low-valuing consumers to understand the trend and decide to join it. As low-valuing consumers enter the market, high-valuing consumers increasingly move on to the next new designs and so on. The premium charged to high- valuing consumers provides fashion designers with return on investment, while the masses enjoy new fashions that can be copied and sold to them more cheaply.
44. Hemphill and Suk equivocate about whether they think the law ought to discriminate among consumption patterns. At some points in the article they eschew normative judgments about the value of fashion, such as those underlying traditional sumptuary laws. But later they decry the "distorting" nature of trademark protection, arguing that the resulting " logoification" is somehow problematic. While as an aesthetic matter we share some of this concern, as an analytic matter we think " distortion" is inherent in the creation of monopolies, and we think normative judgments in favor of one or another type of innovation should largely remain outside our policy analysis unless truly compelling reasons exist. To name just one aspect of the "distortion" argument that strikes us as problematic, Hemphill and Suk assert that a focus on differentiation via trademarks constrains the ways in which apparel can aid individuals in constructing identity and communicating messages. See Hemphill&Suk, supra note 6, at 1179. There is a substantial literature describing the ways in which both trademark owners and consumers use marks to do precisely these things. The argument against trademarks here seems to us to devolve into an argument not in favor of increased communication and identity-construction, but against a particular form of these activities. Thus the argument is heavily value-laden and contestable, and, for that reason alone, requires much more development and justification before it can be used as a reason to extend copyright protection to fashion design.
45. indeed, several of the examples used in Hemphill&Suk, supra note 6, are really examples of fabric pattern copying, rather than design copying.
46. Hemphill&Suk, supra note 6, at 1166.
47. See Raustiala&Sprigman, How Copyright Could, supra note 4.
48. See A Bill to Provide Protection for Fashion Design: Hearing on H.R. 5055 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 87-89 (2006) [hereinafter Hearings on H.R. 5055] (statement of Christopher Sprigman, Associate Professor, University of Virginia School of Law).
49. 4 NIMMER ON COPYRIGHT § 13.03[A] (2008).
50. See, e.g., Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) (finding drawing in children's book that included arrangement of stars and clouds similar to plaintiff's drawing substantially similar, despite significant overall differences in the drawings); Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132 (2d Cir. 1998) (finding trivia book questions quizzing readers about their knowledge of plot incidents from "Seinfeld" television series substantially similar to television show); United States v. Hux, 940 F.2d 314 (8th Cir. 1991) (sustaining criminal copyright conviction in a case involving computer programs, despite evidence that only 205 bytes of defendant's program were similar to copyright claimant's 16,384 bytes), overruled by United States v. Davis, 978 F.2d 415 (8th Cir. 1992);
51. Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987) (use of six-note sequence creates substantial similarity); Whelan Assocs., inc. v. Jaslow Dental Lab., inc., 797 F.2d 1222 (3d Cir. 1986) (finding substantial similarity based on appropriation of computer program's structure and organization, despite parties' agreement that there was no literal copying of program code); Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986) (finding three black and white photographs of ballet performance infringe copyright in choreography of lengthy ballet); Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991) (finding use of three words and short musical phrase creates substantial similarity); Kisch v. Ammirati&Puris, Inc., 657 F. Supp. 380 (S.D.N.Y. 1986) (finding substantial similarity based on similar "underlying tone or mood" of photographs, despite significant differences in subject, pose, lighting, and other elements); Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976) (finding substantial similarity in unconscious copying of three-note and five-note phrase from musical composition); Robertson v. Batten, Barton, Durstine&osborne, inc., 146 F. Supp. 795 (S.D. Cal. 1956) (finding copying two bars of musical composition creates substantial similarity);
52. see also Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 360 (9th Cir. 1947) ("[A]n infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred or reproduced, with more or less colorable alterations to disguise the piracy."); Davis v. E.I. du Pont de Nemours&Co., 240 F. Supp. 612, 621 (S.D.N.Y. 1965) ("[P]araphrasing is tantamount to copying in copyright law."); cf. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 798 (6th Cir. 2005) (finding two- second sample of guitar solo infringing, noting "no substantial similarity or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording").
53. 81 F.2d 49, 56 (2d Cir. 1936).
54. See Hearings on H.R. 5055, supra note 33, at 7 (Rep. Bob Goodlatte asking whether language in bill should be tightened "to make it clear that it only protects against copies that are significantly similar and not those merely inspired by other designs.").
55. Hemphill&Suk, supra note 6, at 1153.
56. See id. at 1181-82.
57. Fashion insiders, moreover, often traffic in apocryphal rules about permissible copying, such as the common belief that copying more than twenty percent of a garment will result in infringement. interview with ilse Metchek, President, California Fashion Association (Mar. 25, 2009).
58. See 17 U.S.C. § 106(1) (2006) (reproduction right); 17 U.S.C. sect 106(2) (2006) (derivative work right).
59. See Neil Netanel, Why Has Copyright Expanded?: Analysis and Critique (UCLA Sch. of Law Pub. Law&Legal Theory Research Paper Series, No. 07-34, 2007), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1066241.
60. Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790).
61. Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485, 492 (2004).
62. See, e.g., JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND (2008).
63. See generally id.; WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT (2004);
64. AWRENCE LESSIG, REMIX (2008); Mark Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031 (2005).
65. There is yet another problem with the proposal for a limited copyright for fashion design: how to determine what is the "original" and what is the "copy." The Senate version of the Design Piracy Prohibition Act, S. 1957, for example, proposed addressing this through a registry system. The administrative burden of this system would of course be great. As the head of the California Fashion Association has noted, in spring '09 alone some 300 runway shows took place in Milan, each featuring dozens of items. To create the capacity for registering 10,000 or more garments per season is likely well beyond the current capacity of the Copyright Office. Interview with Ilse Metchek, supra note 40.
66. See 17 U.S.C. § 504 (2006) (specifying measures of actual and statutory damages available to prevailing copyright plaintiffs); 17 U.S.C § 505 (2006) (authorizing courts to award costs and attorney fees to prevailing copyright plaintiffs).
67. The role of litigation threat is of course hard to discern. Hemphill and Suk focus on existing litigation trends to suggest that design protection is desirable. While we welcome their efforts to look empirically at the question of fashion litigation, what they offer is a melange of different types of cases, including trademark and fabric print cases (both covered by existing IP law). See Hemphill&Suk, supra note 6, at 1174 tbl.1. Given that the design protection they espouse does not apply to either category, and given that current law already does, it is hard to know what inferences ought to be drawn from these cases.
68. See generally BOYLE, supra note 45; LESSIG, supra note 46; MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965);
69. George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON.&MGMT. SCI. 3 (1971). Aside from the policy distortions arising from collective action asymmetries, the content industries have a substantial record of misjudging which intellectual property and technology policies will serve their long-term interests. The motion picture industry was deeply opposed to the VCR and fought it in the courts; that they lost is probably one of the best things that ever happened to the industry, which went on to earn billions from the sale of videos and DVDs. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). A similar and more recent example is the early resistance of the recorded music industry to online music selling. The industry's failure to get behind a consumer-friendly online market contributed first to an explosion of illegal music file-swapping over peer-to-peer networks, and then the rise to market dominance of Apple's iTunes service-which now threatens to displace the record labels as the major player in the distribution of recorded music. See Christopher Sprigman, The 99ø Question, 5 J. ON TELECOMM.&HIGH TECH. L. 87 (2006).
70. Hemphill&Suk, supra note 6, at 1183-84.
71. For the membership roll, see Council of Fashion Designers of America, http://www.cfda.com (follow the "Members" hyperlink) (last visited Feb. 18, 2009).
72. One of us (Raustiala) has consulted with the California Fashion Association regarding its efforts to meet with California Senators and Congressmen and women in order to express opposition to the proposed design copyright legislation.
73. Hemphill and Suk claim that the reason we do not see copyright protection for fashion design-the central question in our original paper-is that the designers "are not sufficiently powerful" and were opposed by retailers and manufacturers. Hemphill&Suk, supra note 6, at 1184. We addressed this hypothesis at length in The Piracy Paradox and rejected it. While the question is hardly closed, nothing in The Law, Economics, and Culture of Fashion changes our view on this point.