Fashion is one of the world’s most important creative industries. As the most immediate
visible marker of self-presentation, fashion creates vocabularies for self-expression that
relate individuals to society. Despite being the core of fashion and legally protected in
Europe, fashion design lacks protection against copying under U.S. intellectual property
law. This Article frames the debate over whether to provide protection to fashion design
within a reflection on the cultural dynamics of innovation as a social practice. The desire
to be in fashion – most visibly manifested in the practice of dress – captures a significant
aspect of social life, characterized by both the pull of continuity with others and the push
of innovation toward the new. We explain what is at stake economically and culturally in
providing legal protection for original designs, and why a protection against close copies
only is the proper way to proceed. We offer a model of fashion consumption and
production that emphasizes the complementary roles of individual differentiation and
shared participation in trends. Our analysis reveals that the current legal regime, which
protects trademarks but not fashion designs from copying, distorts innovation in fashion
away from this expressive aspect and toward status and luxury aspects. The dynamics of
fashion lend insight into dynamics of innovation more broadly, in areas where
consumption is also expressive. We emphasize that the line between close copying and
remixing represents an often underappreciated but promising direction for intellectual
property today.