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The Harvard Brand of Plagiarism

Tribe. Ogletree. Dershowitz. Suk. Why has Harvard spawned enough credible cases of professorial plagiarism to warrant an entire blog? The usual excuses (research assistant; faulty memory; unintentional mistake) may be enough to satisfy an indulgent dean and complicit colleagues, but they gloss over the phenomenon’s deeper significance.

Plagiarism by Harvard professors is not just an unfortunate accident. It is a sign of how Harvard has become the archetype of the branded university.

As Richard Posner explains in The Little Book of Plagiarism, an author’s name “establishes a brand identity . . . in the market for expressive goods.” [69]. The traditional norms of plagiarism arose as a way to protect the author’s identity much like the law of “trademark infringement in the market for ordinary goods.” However, in academia today, innovative research is not just associated with the professor’s identity; professors are marketing icons, and their reputation for producing innovative research is a leading component of the university’s brand identity.

In this context plagiarism is more than just an unfortunate accident among overworked overachievers. The norms of scholarly attribution give way to whatever serves the university’s brand. Although professors may become famous for work that is truly their own, there’s an equally strong incentive for a university to cultivate professors with a facility for garnering publicity at any cost, just like the movie and TV celebrities who become fronts for eponymous products they do not actually create. In law, a highly profitable field that has long operated outside the academic mainstream, the substantial rewards for producing PR-friendly product with a quick turnaround create a market highly favorable for careerist status-seekers with a knack for knocking off.

It’s a problem we’ve seen too many times before, especially in the prominent Harvard plagiarism scandals that have been well documented in the press. For example, Harvard bought Larry Tribe’s excuse that he left out the requisite footnotes because he was writing a popular book, but the fact that he was merely rebranding someone else’s work did not give the University pause. After all, when a university becomes a promotional machine for its professors (and the grad students who serve them), having an eye for ideas to appropriate is just part of the job.

The fashion copyright article by Jeannie Suk and Scott Hemphill is a paradigmatic example of the trainwreck that can result from PR driving productivity. For all her misguided appeals on behalf of emerging designers and flawed defense of allegedly narrow protection, Susan Scafidi’s crusade for fashion copyright was a prime candidate for copying by an opportunistic professor. Scafidi had garnered a considerable amount of press attention, and she had produced a lot of material in a range of media outside law reviews. All that Suk and Hemphill had to do was repackage that product into a journal article and sell it as their own. The result was a blatantly derivative rehash that played to the proven market for fashion news but failed to rise above the obvious limits of their source.

The Suk and Hemphill article is also instructive in the way it illustrates another problem: a knack for quickly culling trumps studied expertise. Consider: neither Suk nor Hemphill had done any writing on fashion before; Hemphill wrote on generic drugs, and Suk wrote on criminal law and privacy. Nonetheless, out of the blue they were suddenly expert fashionistas, touting a fully formed analysis of the fashion industry that just happened to share the same outline, theory, assessment of harm, phrasing and practical recommendations as fashion copyright’s most infamous defender.phrasing and practical recommendations as fashion copyright’s most infamous defender.

Treating scholarship like fast fashion may make for a quick sale, but it is precisely the sort of shallow research that longstanding norms of plagiarism were designed to stop. To the extent these norms remain on paper, they too serve to reinforce the school’s brand; even the vaunted internal investigation can become a promotional tool. Because plagiarist professors would be inconsistent with the university’s brand identity, the university does whatever it takes not to concede the existence of plagiarism in its ranks. The problem, you see, is not Harvard, but those who dare to challenge it.

In this, we see what those who embrace this model would have academia become. Everything serves the goal of promoting the professor as an icon of revolutionary insight. Should there be a critical mass of plagiarism buzz, the image will be maintained through self-maintaining groupthink and attempts to shift the blame. Most ironically, we will also be schooled on the nature of scholarship itself as a fundamentally conservative and deliberate enterprise. The pathbreakers of the press release become mere incremental scholars making use of language and ideas that were in the air, just part of the academic landscape, never mind the fact that the language and ideas in question were plagiarized from someone else’s work.

At a time when concern for the state of legal academia has led Yale Law School to establish a legal Ph.D. to train scholars to produce truly original research, Harvard has cast its lot with those who would subvert academic standards to serve whatever burnishes the brand. In so doing Harvard has become education’s own lux version of Forever 21, knocking off others’ research and claiming it as their own while purporting to serve a higher cause. It’s a cynical and exploitive trick to be sure, albeit one that has proven somewhat effective from a marketing angle; one might even say it’s “narrowly tailored” to suit Harvard’s institutional culture of derivative self-promotion.

Just don’t call it scholarship.

Have another story about academic plagiarism? I’d be interested to hear it. Let me know via the comments below.

The Top 5 Lawprof Strategies When Busted for Plagiarism

Getting away with professorial plagiarism is by no means guaranteed. The top 5 lawprof plagiarism strategies may have come too late for you, or maybe you were a little too bold and lifted material from a scholar whose ideas were too well known to escape notice.

No worries. To help you keep on getting credit for a real scholar’s ideas, these are the top 5 lawprof strategies for when you get busted for plagiarizing.

1) Deny, deny, deny

Nobody wants to believe that a professor can be a ruthless self-promoting plagiarist. Professors are supposed to be different. Deny that you committed plagiarism and most people will believe you.

You can deny plagiarism in a few different ways. An absolute denial refuses to concede that any copying took place at all. This tactic is a favorite among plagiarists who paraphrase, since it taps into the mistaken impression that plagiarism requires copying word-for-word.

If the plagiarism is literal and extensive, like the notorious copying scandals by Harvard Law Professors Charles Ogletree and Larry Tribe, another classic tactic is to deny responsibility. A research assistant did it. Your readers don’t like footnotes. Your photographic memory remembered the passages but forgot the source. It was all just an unfortunate mistake. Excuses we wouldn’t tolerate from students are slam dunks for the plagiarizing law professor.

2) Distract them with detail

When an accusation of plagiarism comes with evidentiary examples, a denial may not be enough. If you were smart enough not to copy an entire passage word-for-word, you should think about distracting people with distinguishing detail.

It’s easy. A paraphrase can change the meaning slightly from the original. Drill down on the differences. Explain that these differences make you original and the accusation wrong. Even if the plagiarism should be evident to a neutral observer, you can make the forest of detail so thick that people will not be able to see the plagiarism for the trees.

Sometimes you come across someone so determined to bust your plagiarism that they won’t let you get away it. This is the perfect occasion for the distract them with detail strategy. Concede that a few incidental details were accidentally copied, but stand by the rest of the work. The worst that will happen is a short explanation on a webpage that few people citing your article will actually read.

3) Burnish the brand

Richard Posner, in The Little Book of Plagiarism, observes that plagiarism is a lot like trademark infringement. To continue with Posner’s analogy, copying a scholar’s work is like copying their “brand.”

A plagiarist also has a personal brand and so does the plagiarist’s law school. To defend yourself and your school, take a page from Posner’s book and find ways to burnish your brand.

Posner mentions one popular tactic among Harvard professors: get your friends and colleagues to defend your reputation. You are a good person. You wouldn’t intentionally copy anyone. You are a real scholar. The law school’s PR team can make this extra effective by scripting quotes, placing op-eds and contacting reporters on your behalf.

Another classic tactic is the sham investigation. Law schools have this down to an art form. Appoint a committee with friends and colleagues; it doesn’t hurt to include professors who have been accused of plagiarism themselves. Conduct a cursory review (by no means let the committee contact the accuser or follow up on evidence that you were aware of the plagiarized work), then announce to the world that the investigation found no basis of intentional copying.

The burnish the brand strategy is especially effective if you are accused of copying work by someone from a lower ranked school. After all, an Ivy League professor would never stoop to intentionally plagiarizing a professor from a non-Ivy, right?

4) Blame the accuser

A complementary strategy to burnishing your brand is blaming the accuser. One pro lawprof tip is to say that your accuser tacitly accepted you copying their ideas by failing to object when the article first became public. Putting your draft on SSRN after it has been accepted for publication can be really helpful here. It may also be a way to bully the professor whose own draft or abstract you copied into accepting being a footnote in your article instead of getting an article published under their own name, because most professors will not want to go through the turmoil of lodging a plagiarism complaint.

Reframing the accusation is another common tactic. The accuser is not protecting original work; the accuser is being uncollegial. The accuser is not defending scholarship; the accuser is attacking the integrity of academia.

This is an especially effective tactic when you have copied the work of an untenured colleague. Groupthink and confirmation bias are your friends when you a tenured professor. Other tenured professors will not want to concede that a tenured lawprof could have committed a firing offense, and untenured professors will not want to risk getting fired. You are in an even stronger position if you at a high ranked law school; lawprofs at lower ranked schools will not want to jeopardize their chances at getting hired at your school or published by your law review by agreeing that you have plagiarized.

Another way to distract attention from the accusation is to make yourself look like a victim. Personal narratives are a valuable currency in legal academia. Write about your painful struggle to overcome the heartwrenching experience of caught in a plagiarism scandal and you’ll get a heap of sympathy for your supposed plight.

A pro lawprof plagiarist will use the last resort of scoundrels but a favorite among lawyers: threaten to file a defamation lawsuit. This may bully the accuser into silence. It can also isolate the accuser by making others afraid to say anything that could get them sued.

5) Everyone knows that nothing is new

It’s a good time to be a lawprof plagiarist. Very few law professors nowadays are in favor of copyright, which means that most law professors will have a kneejerk response in favor of copying even when copyright is not involved. Plagiarism is broader than copyright, and scholarship, like a popular Creative Commons license [Posner, 52], requires attribution, but most law professors won’t make the connection.

This is an easy attitude to exploit. Just defend plagiarism by trotting out the arguments that we all use against copyright. No matter that one professor was associated with an idea; claim that the idea was out there, in the air, not something any one professor should have the right to claim for themselves. Say that nothing is ever really new; find a stray cite where someone else may have said something similar and argue that the professor you plagiarized was just repeating a common idea. Do this well and you pull off the plagiarism hat trick; you will get people to believe that you are an innovative academic because everything you wrote was unoriginal.

The Top 5 Lawprof Plagiarism Strategies

Law professors continue to struggle with the rising tide of student plagiarism. As this recent anonymous law review article aptly notes, penalizing a student for plagiarism can cause some serious problems for the conscientious professor, especially if said professor does not have tenure at the institution where the plagiarism occurred.

Silence or compromise are the usual alternatives to soldiering on with a plagiarism complaint, but in this post I want to offer a third option for the professor who wants to avoid unwanted hassle: teaching law students how law professors steal ideas without getting called out.

The following are my candidates for the top five lawprof strategies for getting credit for someone else’s ideas. Use of these strategies does not exonerate one from a charge of plagiarism, but you just may be able to plagiarize your way to tenure in the Ivy League.

1) Look outside law reviews

The cleverest plagiarists look for material to steal that can’t be found in the Lexis and Westlaw law journal databases. Every law professor knows that the biggest risk of discovery comes from these databases. Law students check them in source cites, and other professors will check them when doing similar research. If you’re the first person to express the idea in a law journal, you can fool people into thinking you came up with it yourself.

That’s why professors who cannot think up their own ideas mine other sources for their law review articles. One popular tactic is to repurpose ideas from other disciplines, such as the thesis of a little read scholarly monograph, article or dissertation. Another popular tactic is to expand on ideas, outlines and abstracts from another law professor’s work in progress; academic norms about respecting another scholar’s drafts mean nothing to the unscrupulous professor who wants to grab the brass ring. Material plagiarized from a blog, a book chapter, congressional testimony, a peer-reviewed or foreign article, an amicus brief, or an unaccepted draft article on SSRN is also not likely to be caught, provided you get it between the covers of a law journal first.

2) Name it and claim it

OK, so you’ve found someone else’s idea that you’d like to copy. What do you do next? Call it yours.

The original starts with a particular theoretical perspective? Start by implying you are the first to use that perspective. It’s an easy trick: just preface the point with, “I [or we] explain that ….” This gives the impression that the idea originated with you (and, if applicable, your co-author).

The same goes for the rest of your article. The original offers a two-pronged model for analyzing its subject? Offer a similar-sounding two-prong model and imply that you came up with the prongs yourself. Having trouble filling the blank page? Take the outline from someone else’s abstract and use it as the framework for your article.

Yes, according to traditional academic standards this is plagiarism of another scholar’s original work, but your chances of getting caught are slim. It’s hard to search for a perspective or an outline on Lexis and Westlaw.

3) Paraphrase

When copying someone else’s work, never underestimate the power of the paraphrase. Not only does this make your copying harder to notice; it also gives you an easy way to protest that the material you stole is your own.

4) Borrowed citations and parallel research

Amateur plagiarists copy citations from someone else’s footnotes instead of crediting the original researcher over and over again. Sometimes you can get away with this, but it’s really easy to get caught. Pro lawprof plagiarists take the extra step of getting their research assistants to conduct research that parallels the research in the work that is being copied. You don’t always quote the exact same sources used by the original professor; you find other sources that support the same point.

5) Selectively citing the author you plagiarized

Here’s the coup de grace of the clever plagiarist: strategically citing the person you’ve ripped off. Put that person’s name in the acknowledgments, which gives the impression that you’ve credited their inspiration and they’ve signed off on your appropriation of their ideas. Cite their work in a couple footnotes for minor supporting examples, but do not cite them for the central ideas, examples and outline. For the extra twist, add citations from other people in the same footnote, to give the impression that your source is just a minor tangential supporter to your work.

Like everything else in this post, this too is plagiarism, but it’s a trick that law student editors and nonspecialist lawprofs are not likely to catch. If you get caught, don’t fret; the next post gives the top 5 lawprof strategies for defending yourself when busted for copying.

The Secret Disclosures of Fashion Copyright

The campaign to enact copyright protection for fashion is looking more and more like a rat’s nest of corruption.

After my research on plagiarism led to the discovery that a charitable foundation was, possibly illegally, funding the CFDA’s lobbying effort to the tune of at least $250,000, I decided to look up which other groups were paying to get Congress to pass a fashion copyright bill.

The surprise answer is none, not even the CFDA.

At least that is what the lobbyists would have us believe. I am not an expert on lobbying disclosure law, but from what I can tell, federal law requires a lobbyist for a bill to disclose the client and any third party organizations paying for the lobbying activity. The press for the bill says that the CFDA is sponsoring the IDPPPA lobbying campaign, but the lobbyists’ filings for the fashion copyright legislation say that a different client is paying the bills.

That client is Coblence and Associates. The CFDA and the Geoffrey Beene Foundation, despite the public statements saying that they are paying for the lobbying campaign, are nowhere to be found in the lobbying disclosures required by federal law.

Recent disclosures don’t say much, but Coblence and Associates does have a revealing Google trail. It is the law firm of Alain Coblence, an attorney who, big surprise, represents leading luxury goods, fashion and cosmetics companies. His online bio describes him as the proponent and author of the fashion copyright bill, and the disclosures state that he has paid more than $1.5 million for the lobbying campaign.

Who does Coblence represent? What are the fashion copyright lobbyists hiding? The archived disclosures of Jon Baumgarten, a copyright lawyer no longer with the fashion bill’s lobbying campaign, do not include the CFDA as an affiliated organization. Instead, Baumgarten’s old disclosure lists Coblence as representing two foreign clients: the French Federation of Couture and the Italian Trade Commission.

If this is true, it could be a big problem for Coblence and the IDPPPA’s present registered lobbyists, Liz Robbins Associates, TwinLogic Strategies and Moore Consulting. As far as I have been able to find, the federal filings by these lobbyists going back to 2005 only list Coblence as the responsible party. The disclosures specifically aver that no other organizations are funding the lobbying effort and that no foreign organizations are involved.

Once again, a reporter or scholar with a greater interest in these issues may want to look into this matter further. It sure does seem like that the lobbying campaign for fashion copyright is using Coblence to launder money from other organizations and maybe even a foreign government. Jeannie Suk and Scott Hemphill may not be the only ones with sources to hide.

Following the Money for Fashion Copyright

I decided to do some more background research on the fashion copyright crusade for my broader plagiarism project, and I noticed something that I don’t think anyone else has pointed out before.

Its funding could be in violation of federal law.

The CFDA website states that “The Geoffrey Beene Foundation has made a financial contribution of $250,000 to support the CFDA’s effort to extend copyright protection to designers.” In context this refers to support for the CFDA’s copyright legislation.

The U.S. tax law prohibits a private foundation from lobbying or giving a grant earmarked to support a lobbying effort. The penalties for illegally funding an attempt to influence legislation are severe for the foundation and the managers who approved the expenditure.

I tried to find a report of this lobbying grant to the IRS but came up empty handed. This raises the possibility that the CFDA and the Beene Foundation are funneling money earmarked for lobbying through charitable grants that would not raise any red flags.

A reporter or scholar with a greater interest in these issues may want to look into this matter further. Maybe it’s only a badly worded webpage, but it sure looks like evidence of something worse.

The Knockoff Scholarship of Jeannie Suk and Scott Hemphill

Today Professor Jeannie Suk will be testifying in Congress in favor of the Innovative Design Protection and Piracy Prevention Act, a bill to impose copyright protection on fashion design. That she’s the IDPPPA’s latest champion only serves to underscore how the whole crusade is just a sham.

Some of us in legal academia know the reason why Suk has no business testifying against copying, but the academic code of silence has kept the secret quiet. Suk and her co-author Scott Hemphill plagiarized their law review article advocating fashion copyright, The Law, Culture and Economics of Fashion. They hypocritically want to deny fashion designers the right to use other people’s work, but they themselves are close copyists.

Here’s a chart with citations for a number of points that Suk and Hemphill took without attribution from the most notorious advocate for the fashion copyright bill, Susan Scafidi. Every one of Suk’s and Hemphill’s major points, and from what I can tell, most of their supporting arguments come from either Scafidi’s testimony in Congress or her other writings.

I asked Scafidi about this at a panel discussion. She told me that she was aware of the plagiarism. Scafidi said that Hemphill had met Scafidi at a faculty workshop and said he wanted to write about fashion too, in part so he could get tickets to fashion shows for his fiancee. He asked Scafidi about a work in progress she had workshopped on fashion copyright, and afterward she started getting emails from Hemphill’s and Suk’s research assistants asking for her article draft and anything else she had that wasn’t publicly available. She thought they would be writing a scholarly response, but instead, they just parroted what she’d said and claimed they’d come up with it all themselves.

Scafidi said she was personally distressed by Suk and Hemphill copying her work, but she didn’t want to start a public controversy that could hurt the IDPPPA’s chances for getting passed. Nevertheless, this act of plagiarism, a common problem with Harvard law professors, calls to mind the problem many of us have with the fashion copyright bill itself. The big fashion companies paying to get their way don’t really care about innovation policy. Most of the big companies are copyists themselves who are just using this anti-copying campaign to cover their tracks.

If Suk and Hemphill think that calling their work plagiarism is unfair and that it is actually just a transformative remix, now they know how it will feel to be a designer unfairly punished for violating the fashion copyright law they support.

How Jeannie Suk and Scott Hemphill Committed Plagiarism

Here are some transparent examples of plagiarism in the Suk and Hemphill article on fashion copyright, The Law, Economics and Culture of Fashion.

In reading this, it’s important to remember that the standard for academic plagiarism is broader than copyright. As noted in Harvard‘s own plagiarism policy, plagiarism is the use of “any idea or any language from someone else without adequately crediting that source.”

Suk and Hemphill use the run of the mill strategies for plagiarizing Susan Scafidi. They appropriate her ideas without citation and claim her ideas as their own. They paraphrase Scafidi’s language, with words that are slightly changed or occasionally with the exact same words. They also pull the trick of citing Scafidi in the acknowledgments and for an occasional supporting detail, but not going on to credit her for the main theories, arguments and examples that Suk and Hemphill have lifted.

A more detailed chart, with citations, can be found here.

  • Scafidi wrote a book on IP and culture, and she has long argued for the central importance of cultural analysis and the need to rethink law and economics from a cultural perspective. However, Suk and Hemphill claim that they are the first to have applied a cultural analysis to fashion copying and that blending cultural analysis with law and economics is a “new” method that they came up with on their own.
  • In multiple public statements Scafidi has argued that the primary harm from copying falls on emerging designers, who lack trademark protection and don’t have the resources to absorb losses. Nonetheless, Suk and Hemphill present this very same point as their original idea.
  • Scafidi distinguishes between following a trend and “closely” copying with a literal, line-for-line knockoff. Suk and Hemphill claim that their work is new because it differentiates between following a trend and “closely” copying.
  • Scafidi argues that we need a new IP approach based on recognizing optimal levels of copying and differentiating close copying from trends. Hemphill and Suk make the same argument.
  • At a Fashion Law Institute panel on the IDPPPA, Scafidi argued that this bill is not about protecting the $3000 dress, but the $300 dress created by an emerging designer. Hemphill attended this panel. In her prepared statement for Congress today, Suk likewise uses the example of “a designer’s dress that retails for $300 instead of $3000″ to make the same point.
  • Scafidi has argued that the fashion copyright bill “would increase affordable fashion choices.” In her testimony before Congress today, Suk argues that the fashion copyright bill “would increase consumers’ choice of designs.”
  • Scafidi concluded her testimony before Congress by calling for “tailored protection,” a metaphor used throughout her work. Suk and Hemphill concluded their article by calling from “tailored protection,” and Suk also concludes her own testimony by describing the bill as a “tailored response.”
  • Scafidi has written extensively about the “distortion” of fashion and IP law resulting from the fact that current law does not protect original designs but does protect trademark and trade dress. Suk and Hemphill make the exact same arguments, expressly noting the same “distortion.”
  • Scafidi notes that copyists hurt creative design by targeting the “most successful models” without having to bear the cost and the risk of developing new products. Suk and Hemphill make the same argument.
  • Scafidi argues that it would be more efficient for there to be a statutory alternative to a gradual judicially interpreted “conceptual separability” standard in fashion copyright. Suk and Hemphill make the same argument.
  • In her Congressional testimony and elsewhere, Scafidi proposes a narrowly tailored legal standard prohibiting “closely and substantially similar” copies. Suk and Hemphill propose a legal standard prohibiting “close copies,” and Suk falsely takes credit for the IDPPPA including a narrowly tailored legal standard.
  • In her Congressional testimony and elsewhere, Scafidi has repeatedly pointed out that such a standard would be consistent with the low protectionist argument that copyright protection should be adapted to particular creative industries. Suk and Hemphill make the same point.
  • Scafidi has long argued that narrowly tailored protection would not discourage innovation, but would actually encourage creative design by giving copyists an incentive to make their work identifiably different. Suk and Hemphill say the same thing.
  • Applying concepts from cultural theory, Scafidi uses two organizing categories: mimesis (imitation) and metamorphosis (creative transformation). Suk and Hemphill did the same thing with just a slight paraphrase, dividing behavior into flocking (imitation) and differentiation (the “creative impulse”). They claim to have devised these basic concepts themselves.
  • Scafidi explains that a cultural perspective analyzes the fundamentally “human impulses” that lead to imitation and creative expression. Following her lead, Suk and Hemphill argue that a cultural model examines the “human desires” to copy and create.

Suk and Hemphill Plagiarism Chart

This chart contains a number of the main arguments that Jeannie Suk and Scott Hemphill plagiarized from fashion copyright crusader Susan Scafidi. This chart is necessarily incomplete, since I only noticed the mention of Suk’s testifying before Congress the day before it was scheduled to take place. Time permitting I may provide additional examples and citations. Please submit any suggestions to me at

References for the abbreviated cites are at the end of the cart. I hope this account of copying by Jeannie Suk, who testified before Congress against copying in fashion, finally puts an end to the misguided fashion copyright bill.

Scafidi

Suk and Hemphill

Harm: primarily to “emerging designers”; established firms are more secure legally and financially (e.g., Statement, 3)

Harm: “[a]s we explain,” primarily to “emerging designers”; established firms more secure legally and financially (Article 1153, 1177; WSJ; Suk, 5)

Solution: “tailored protection” for the fashion industry (Testimony; see also Statement, 1, 2, 9)

Solution: “tailored protection” for the fashion industry (Article, 1184-85; Suk, 10)

Theoretical basis: cultural analysis; argues that understanding “the culture of the copy” is necessary to go beyond limits of law and economics (See, e.g., Abstract, 1; CC; Statement, 4-6)

Theoretical basis: Claim to be the first to analyze copying through cultural analysis, allegedly their “new” method of crossing boundaries with law & economics (Article 1154-1155)

Cultural model examines “human impulses and values” (Abstract, 1)

Cultural model examines “human desires” (Article, 1155)

Fashion not just a means of marking elite status, but an expression of “symbolic thinking” (Statement, 3-4; Syracuse, 75)

Fashion is not just a means of marking elite status, but “has a symbolic function” (Article, 1158-59)

Divides cultural analysis of close copying and trends into two categories: mimesis (imitation) and metamorphosis (creative transformation) (Abstract, 1; CC)

Divides cultural analysis of close copying and trends into two categories: differentiation (“imitation”) and differentiation (the “creative impulse”) (Article, 1164, 1166)

Traditional art/craft distinction applied to fashion is incorrect; “fashion design is a creative medium that is not driven solely by utility or function” (Statement, 3)

Dismissal of fashion as art is invalid; fashion “is undeniably a creative good that has expressive feature” (Article, 1163)

Proposal: standard restricting “closely and substantially similar copies,” differentiating trends from “too literal copies” (Statement, 9; Abstract, 1)

Proposal: standard restricting “close” copies, differentiating trends from “closely” copied originals (Article, 1153, 1160)

Legal protection would promote innovation by providing an incentive to avoid close copying (e.g., Statement, 9-10)

Legal protection would promote innovation by providing an incentive to avoid close copying (Article, 1155, 1193-94)

Copying not new. What has changed is the proliferation of cheap copies due to new technology and “the new challenge of fast fashion” (See, e.g., Testimony; Statement, 5-6; http://about.counterfeitchic.com/)

“We explain what is new about fast fashion;” what has changed is scale of copying due to new technology (Article, 117-71)

The “dismantling” of import quotas has produced a shift in the locus of low-cost production (Statement, 6)

“Dismantled quotas” have caused a shift in the locus of low-cost production (Article, 1171)

“Knockoff artists … target creative designers’ most successful models,” skipping the costly process of developing new products (Statement, 7)

“Fashion copyists, by contrast, are selective … only the most profitable designs are copied,” which discourages incurring the expense of innovation (Article, 1175)

Proliferation of literal, line-for-line copies results in loss of orders and diminished market for original design (See, e.g., Testimony)

Proliferation of close copies results in loss of orders and reduced demand for original design (Article, 1176)

“Distortion” of design and law created by lack of copyright protection for fashion design (Statement, 3, 10)

“Distortion” of design and law created by lack of copyright protection for fashion design (Article, 1176-80)

Legislative alternative preferable to judicially interpreted conceptual separability standard in fashion copyright (Statement, 2)

Statutory alternative more efficient than judicially interpreted conceptual separability standard in fashion copyright (Article, 1185-86)

Self-regulation within the fashion industry is another potentially effective strategy (Abstract, 3)

Self-regulation within the fashion industry is another potentially effective strategy (Article, 1193)

“Narrowly tailored” legislative standard is consistent with industry-tailored standards generally favored by low-IP advocates (Testimony; Statement, 9)

Claim to have originated idea of a “narrowly tailored” standard that would be consistent with industry-tailored standards generally favored by low-IP advocates (Article, 1184-85)

Argues for a new IP approach based on recognizing optimal levels of copying and differentiating close copying from trends (See, e.g., Abstract, conclusion)

Argues for a new IP approach based on recognizing optimal levels of copying and differentiating close copying from remixes and trends (Article, conclusion)

IDPPPA benefits “emerging designers,” is “not about the $3000 dress but the $300 dress” (Panel)

Bill benefits “emerging designers,” “a designer’s dress that retails for $300 instead of $3000″ (Suk, 5)

IDPPPA “would increase affordable fashion choices” (Tribune)

Bill “would increase consumers’ choice of designs” “at lower price point” (Suk, 6-7, 10)

(Besides the above listed items, a number of ideas in Suk and Hemphill can also be found in Scafidi’s book chapter on Intellectual Property and Fashion Design

References: Scafidi

References: Suk & Hemphill

Abstract: Counterfeit Chic: The Culture of the Copy in an Outlaw Medium

Article: The Law, Economics and Culture of Fashion

CC: Counterfeit Chic (blog; linked)

Suk: IDPPPA testimony (July 15, 2011)

Panel: IDPPPA panel, Fashion Law Institute at Fordham Law School (2010)

WSJ: Schumer’s Project Runway

Syracuse: F.I.T.: Fashion as Information Technology

Statement & Testimony: HR 5055 hearing available here (July 27, 2006)

Tribune: Rodriguez & Scafidi, Knock it off! Quashing design pirates

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