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70 Md. L. Rev. Endnotes 1 (2010-2011)

handle is hein.journals/endnot70 and id is 1 raw text is: VOGUE JURIDIQUE & THE THEORY CHOICE PROB LEM IN THE DEBATE OVER COPYRIGHT PROTECTION FOR FASHION DESIGNS MICHAEL G BENNETT,* NICK BUELL,** JASON CETEL,*** AND C.C. PERRY**** I. INTRODUCTION 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 theoryl-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? Professor Kal Raustiala and Professor Christopher Sprigman's seminal treatment2 of this copyright conundrum and Professor C. Scott Hemphill and Professor Jeannie Suk's subsequent, substantially divergent analysis3 collectively constitute a rich theoretical engagement with the issue.4 Still, Copyright © 2010 by Michael G Bennett, Nick Buell, Jason Cetel, and C.C. Perry. * Associate Professor, Northeastern University School of Law. The authors reserve all ownership rights in the shortcomings of this Article, but, with deepest gratitude, acknowledge the constructively critical reviews of Henry Liang, John McCaltin, and Alfred Steiner. This work was supported by National Science Foundation Grant #0741490 and is dedicated to Alexander McQueen (1969-2010). J.D. Candidate 2013,Fordham University School of Law, B.A. 2010, Vassar College. *** J.D. Candidate 2012, Seton Hall University School of Law, B.A. 2009, Vassar College. **** B.A. 2009, Vassar College. 1. See generally William W. Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168 (Stephen R. Munzer ed-, 2001). 2. Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687 (2006) [hereinafter R&S, Piracy Paradox]; Kal Raustiala & Christopher Sprigman, The Piracy Paradox Revisited, 61 STAN. L. REv. 1201 (2009) [hereinafter R&S, Revisited]. 3. C. Scott Hemphill & Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 STAN. L. REv. 1147 (2009) [hereinafter H&S, Economics of Fashion]; C. Scott Hemphill & Jeannie Suk, Reply: Remix and Cultural Production, 61 STAN. L. REv. 1227 (2009) [hereinafter H&S, Reply]. 4. Cf Megan Williams, Comment, Fashioning a New Idea: How the Design Piracy Prohibition Act Is a Reasonable Solution to the Fashion Design Problem, 10 TUL. J. TECH. &

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