Susan Scafidi (Fordham Law School) has posted F.I.T.: Fashion as Information Technology (Syracuse Law Review, Vol. 59, p. 69, 2008) on SSRN. Here is the abstract:
FIT: Fashion as Information Technology is one of a series of three short works on the relationship between intellectual property and fashion design. The first, a book chapter entitled simply Intellectual Property and Fashion Design, outlines the history of the issue with particular reference to the status of fashion design protection in the United States. The second, a long-term work in progress, focuses on the cultural and historical reasons for the limited degree of intellectual property extended in the past to certain categories of human creativity, including fashion design. This essay turns to the question of why-despite shifting cultural attitudes and other conditions-some tension still exists between creators and consumers of fashion, how information theory can contribute to an explanation for that tension, and what role law can play in its resolution. In addition, I explore these issues in a book forthcoming from Yale University Press and a blog, Counterfeit Chic, available at http://www.CounterfeitChic.com. The goal of FIT is twofold: first, to redirect attention to the broader realm of information and communications technology, of which fashion is a foundational medium; and second, to analyze fashion as an information technology in order to better understand the industry's desire for intellectual property protection, popular resistance to such protection, and the most efficacious balance between them in terms of creative expression. Beginning with Part I, FIT explores the broad concept of information and communications technology and its legal parameters. Turning specifically to the clothing and textile industry, Part II focuses on both the historical and cultural role of fashion in conveying information and the production mechanisms that are direct historical antecedents of more recently developed information technologies. Part III discusses the bi-level nature of clothing and accessories as information technology, simultaneously embodying the designer's authorial voice and generating information on behalf of and about the wearer. Finally, Part IV identifies the dueling approaches to intellectual property law inherent in fashion's dual information identity, points out the inadequacies and distorting effects of the legal status quo, and suggests a framework for resolution - narrowly tailored for a perfect fit.