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THE LAW, CULTURE, AND ECONOMICS OF FASHION

THE LAW, CULTURE, AND ECONOMICS OF FASHION

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Published by JNomics
Stanford Law Review: C. Scott Hemphill & Jeannie Suk
Stanford Law Review: C. Scott Hemphill & Jeannie Suk

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Published by: JNomics on Sep 10, 2010
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Mass copyists undermine the market for the copied good. Copies reduce
the profitability of originals, thus reducing the prospective incentive to develop
new designs in the first place. The predicted result, a reduced amount of
innovation, is familiar from copying in other creative industries, such as file
sharing of copyrighted music and films.

96.The information in this table is drawn from First Amended Complaint at 7, Anna
Sui Corp. v. Forever 21, Inc., No. 07-cv-3235 (S.D.N.Y. June 26, 2007); Complaint at 5-6,
Anthropologie, Inc. v. Forever 21, Inc., No. 07-cv-7873 (S.D.N.Y. Sept. 6, 2007); Amended
Complaint at 3-13, Bebe Stores, Inc. v. Forever 21, Inc., No. 07-cv-35 (N.D. Cal. June 7,
2007); Complaint at 3-4, Carole Hochman Design Group, Inc. v. Forever 21, Inc., No. 07-
cv-7699 (S.D.N.Y. Aug. 20, 2007); First Amended Complaint at 5-7, Diane von Furstenberg
Studio, LP v. Forever 21, Inc., No. 07-cv-2413 (S.D.N.Y. Apr. 12, 2007); Complaint at 2-3,
Harajuku Lovers, LLC v. Forever 21, Inc., No. 07-cv-3881 (C.D. Cal. June 14, 2007);
Complaint at 4-5, Harkham Industries, Inc. v. Forever 21, Inc., No. 08-cv-3308 (C.D. Cal.
May 19, 2008); Complaint at 6-9, Trovata, Inc. v. Forever 21, Inc., No. 07-cv-1196 (C.D.
Cal. Oct. 8, 2007).

97.The designer can reach cost-conscious customers to some extent through bridge
lines, see Sally Weller, Fashion’s Influence on Garment Mass Production: Knowledge,
Commodities and the Capture of Value 129-30 (Oct. 2003) (unpublished Ph.D. dissertation,
Victoria University), available at http://wallaby.vu.edu.au/adt-VVUT/public/adt-
VVUT20050201.101459/index.html, albeit usually not close copies, but a fast-fashion copy
is a still lower price. It is therefore no surprise that designers have issued small “capsule”
collections through fast-fashion firms in many instances. See Eric Wilson, The Big Brand
Theory, N.Y. TIMES, Sept. 9, 2007, § 6 (Magazine), at 74.

HEMPHILL & SUK 61 STAN. L. REV. 1147

4/25/2009 2:12 PM

March 2009]

FASHION

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Fashion copying is different from file sharing, however, in an important
respect. File sharing provides access to essentially every musical work. Fashion
copyists, by contrast, are selective. They have a business to run and costs to
recoup, and so only the most profitable designs are copied. Moreover, not all
copies reduce producer profits. Some are relatively harmless.
The selectivity of copyists, combined with the uneven effects on producer
profitability, reduce the incentives of some producers—and the incentive to
produce some products—more than others. Thus, mass copying can be
expected to affect the direction of innovation as well, as we explain below.

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