The Shame Game: Alternative Copyright Enforcement in the Fashion Industry

Let’s suppose that you, dear reader, are the sole proprietor of a company that makes a particular kind of pen. Your pen is quite distinctive, easily recognizable by its design and improvements over previous iterations of pens. One morning, while sipping a cup of fair trade coffee, you decide to flip on the television. Anger, shock, and confusion quickly well up inside you as you notice an infomercial for a pen that looks nearly identical to yours but costs half the price. “Ah the humanity!!,” you exclaim, barely able to keep your cold brew down, “I’ll never be able to afford a lawyer to go after these copyright infringing clowns.” Resist the urge to toss your television out the window (and while you’re at it send a thank you letter to the lawyers for Varsity Brands).

If you were (or do happen) to find yourself in just such an unfortunate situation, you wouldn’t be/are not alone. Many folks find themselves in the very same situation as our hypothetical, panicked pen maker, which is arguably the primary reason behind the growth of alternative copyright enforcement strategies. These strategies, like many ways of colloquially interacting with the legal system (see e.g. Of Coase and Cattle) constitute a wholly organic framework to fill in gaps in the law. In this particular instance the gap exists in the fact that copyright enforcement paradigms lack teeth if one cannot access them for pecuniary, intellectual, or personal reasons. Groups of such people are therefore left to construct their own disincentives to infringement.

In the fashion industry, the problem is particularly acute. For one thing, labels, especially those aiming at the top end of the market, depend on the uniqueness and relative scarcity of their design as a business model, so infringement is particularly damaging. For another, the proliferation of small labels and designers who aim to disrupt the market via their uniqueness also means there is a large class of actors within the industry who cannot afford to pay for lengthy legal battles. Moreover, much like in the case of online file sharing, the legitimate right to restrict use has become practically unenforceable as copycat fast fashion outlets pop up overnight.

So fashion designers have taken matters into their own hands. Interested less in legal action and more in the swift removal of offending apparel items from the market, designers like Philip Lim and Aurora James have taken to Instagram to shame alleged infringing companies. In an industry where a small group of dedicated followers can unleash a trend, shaming leads consumers to make a choice against purchasing the “knockoff,” copyright infringing apparel. That choice, or the threat of consumers making that choice, is often all that a large company like Steve Madden needs to pull a shoe, blouse, or accessory from store shelves. In their decision calculus, the cost of continued shaming is higher than fighting back to defend the originality of their work (and also less likely to involve perjury in many cases.)

Such an informal vernacular enforcement mechanism (i.e. shaming) has its upsides: low transaction costs, reduced burden on the legal system, etc. Additionally, there is no evidence that this particular mechanism has any negative effect on the diversity of designs or the viability of being a designer despite its lower barriers to use, which suggest, on face, that it might be utilized more often than actual instances of infringement would require. Yet, shaming also has its downsides, in particular, shaming opens the “shamer” up to libel suits.

Despite the possibility for counter suit, it certainly seems possible that this is a clear case wherein alternative mechanisms present a way forward in a world where copyright seems either exceedingly hard to enforce or abusively enforced depending on the actors involved and the exigenc