Lessons from fashions free culture Johanna Blakley

I heard this amazing story about Miuccia

Prada she’s an Italian fashion designer

she goes to this vintage store in Paris

with a friend of hers she’s rooting

around she finds this one jacket by

balance yoga she loves it

she’s turning it inside out she’s

against the seams she’s looking at the

construction her friend says buy it

already she said I’ll buy it but I’m

also going to replicate it now the

academics in this audience may think

well that sounds like plagiarism but to

a fashionista what it really is is a

sign of Pradas genius that she can root

through the history of fashion and pick

the one jacket that doesn’t need to be

changed by one iota and to be current

and to be now you might also be asking

whether it’s possible that this is

illegal for her to do this well it turns

out it’s actually not illegal in the

fashion industry there’s very little

intellectual property protection they

have trademark protection but no

protection to speak of all they have

really is trademark protection and so it

means that anybody could copy any

garment on any person in this room and

sell it as their own design the only

thing that they can’t copy is the actual

trademark label within that piece of

apparel that’s one reason that you see

logos splattered all over these products

it’s because it’s a lot harder for

knockoff artists to knock up these

designs because they can’t knock off the

logo but if you go to Santee alley yeah

Lea

Canal Street I know and sometimes these

are fun right now the reason for this

the reason that the fashion industry

doesn’t have any copyright protection is

because the courts decided long ago that

apparel is too utilitarian to qualify

for copyright protection they didn’t

want a handful of designers owning the

seminal building blocks of our clothing

and then everybody else would have to

license this cuff for this sleeve

because Joe Blow owns it but to

utilitarian I mean is that the way you

think of fashion this is Vivienne

Westwood no we think of it as maybe too

silly to unnecessary now those of you

who are familiar with the logic behind

without ownership there is no incentive

to innovate might be really surprised by

both the critical success of the fashion

industry and the economic success of

this industry what I’m going to argue

today is that because there’s no

industry fashion designers have actually

been able to elevate utilitarian design

things to cover our naked bodies into

something that we consider art because

there’s no copyright protection in this

industry there’s a very open and

creative ecology of creativity unlike

their creative brothers and sisters who

are sculptors or photographers or

filmmakers or musicians fashion

designers can sample from all their

peers designs they can take any element

from any garment from the history of

fashion and incorporate it into their

own design they’re also notorious for

you know riffing off of the zeitgeist

and here I suspect they were influenced

by the costumes in Avatar maybe just a

little can’t copyright a costume either

now fashion designers have the broadest

palette imaginable in this creative

industry this wedding dress here is

actually made of sporks and this dress

is actually made of aluminum I’ve heard

this dress actually sort of sounds like

wind chimes as they walk through so one

of the magical side effects of having a

culture of copying which is really what

it is

is the establishment of trends people

think this is a magical thing how does

it happen well it’s because it’s legal

for people to copy one another some

people believe that there are a few

people at the top of the fashion food

chain who sort of dictate to us what

we’re all going to wear but if you talk

to any designer at any level including

these high-end designers they always say

their main inspiration comes from the

street where people like you and me

remix and match our own fashion looks

and that’s where they really get a lot

of their creative inspiration so it’s

both the top-down and a bottom-up kind

of industry now the fast fashion giants

have probably benefitted the most from

the lack of copyright protection in the

fashion industry they are notorious for

knocking off high-end designs and

selling them at very low prices and

they’ve been faced with a lot of

lawsuits but those lawsuits are usually

not won by fashion designers the courts

have said over and over again you don’t

need any more intellectual property

protection when you look at copies like

this if you wonder how do the luxury

high-end brands remain in business you

can get it for 200 bucks why pay a

thousand well that’s one reason we had a

conference here at USC a few years ago

we invited Tom Ford to come the

conference was called ready to share

fashion in the ownership of creativity

and we asked him exactly this question

here’s what he had to say he had just

come off a successful stint as the lead

designer at Gucci in case you didn’t

know and we found after much research

that actually not much research quite

simple research that the counterfeit

customer was not our customer imagine

that the people on sandy alley are not

the ones who shop a Pucci

this is a very different demographic and

you know a knockoff is never the same as

an original high-end design at least in

terms of the materials are always made

of cheaper materials but even sometimes

a cheaper version can actually have some

charming aspects can breathe a little

extra life into a dying trend there’s

lots of virtues of copying one that a

lot of cultural critics have pointed to

is that we now have a much broader

palette of design choices to choose from

than we ever have before and this is

mainly because of the fast fashion

industry actually and this is a good

thing we need lots of options fashion

whether you like it or not helps you

project who you are to the world because

of fast fashion global trends actually

get established much more quickly than

they used to and this actually is good

news to trendsetters they want trends to

be set so that they can move product for

fashionistas they want to stay ahead of

the curve they don’t want to be wearing

what everybody else is wearing and so

they want to move on to the next trend

as soon as possible I tell you there is

no rest for the fashionable every season

these designers have to struggle to come

up with the new fabulous idea that

everybody is going to love and this let

me tell you is very good for the bottom

line now of course there’s a bunch of

effects that this culture of copying has

on the creative process and Stuart

Weitzman is a very successful shoe

designer he has complained a lot about

people copying him but in one interview

I read he said you know it’s really

forced him to up his game he had to come

up with new ideas new things that would

be hard to copy he came up with this

Boden wedge heel that has to be made out

of steel or titanium if you make it from

some sort of cheaper material it’ll

actually crack into it forced him to be

a little more innovative and that

actually reminded me of jazz great

Charlie Parker

I don’t know if you’ve heard this

anecdote but I have he said that one of

the reasons he invented bebop was that

he was pretty sure that white musicians

wouldn’t be able to replicate the sound

he wanted to make it too difficult to

copy and that’s what fashion designers

are doing all the time they’re trying to

put together a signature look an

aesthetic that reflects who they are

when people knock it off everybody knows

because they’ve put that look out on the

runway and it’s a coherent aesthetic

I love these Galliano’s okay we’ll move

on this is not unlike the world of

comedy I don’t know if you know that

jokes also can’t be copyright protected

so when one-liners were really popular

everybody stole them from one another

but now we have a different kind of

comic they develop a persona a signature

style much like fashion designers and

their jokes much like the fashion

designs by a fashion designer really

only work within that aesthetic if

somebody steals the joke from Larry

David for instance it’s not as funny now

the other thing that fashion designers

have done to survive in this culture of

copying is they’ve learned how to copy

themselves they knock themselves off

they make deals with the fast fashion

giants and they come up with a way to

sell their product to a whole new

demographic the Santee alley demographic

now some fashion designers will say it’s

only in the United States that we don’t

have any respect in other countries

there is protection for our artful

designs but if you take a look at the

two other biggest markets in the world

it turns out that the protection that’s

offered is really ineffectual in Japan

for instance which i think is a third

largest market they have a design law

it protects apparel but the novelty

standard is so high you have to prove

that your garment has never existed

before it’s totally unique and that’s

sort of like the the novelty standard

for a u.s. patent which fashion

designers never get rarely get here in

the states in the European Union they

went in the other direction very low

novelty standard anybody can register

anything

but even though it’s the home of the

fast fashion industry and you have a lot

of luxury designers there they don’t

there’s not a lot of litigation it turns

out it’s because the novelty standard is

too low a person can come in and take

somebody else’s gown cut off three

inches from the bottom go to the EU and

that does not stop the knockoff artists

if you look at the registry actually a

lot of the registered things in the ER

are Nike t-shirts that are almost

identical to one another but this is not

stopped diane von fürstenberg she is the

head of the Council of Fashion Designers

of America and she has told her

constituency that she is going to get

the retailers have kind of quashed this

notion though I don’t think the

legislation is going anywhere because

they realized is so hard to tell the

difference between a pirated design and

something that’s just part of a global

trend who owns a look that is a very

difficult question to answer it takes

lots of lawyers and lots of court time

and the retailers decided that would be

way too expensive you know it’s not just

a fashion industry that doesn’t have

other industries that don’t have

industry you cannot copyright a recipe

because it’s a set of instructions it’s

fact

and you cannot copyright the look and

feel of even the most usee unique dish

same with automobiles it doesn’t matter

how wacky they look or how cool they

look you cannot copyright the sculptural

design

it’s a utilitarian article that’s why

same with furniture even you know it’s

too utilitarian magic tricks I think

there’s like construction sort of like

recipes no copyright protection hairdos

no copyright protection open-source

software these guys decided they didn’t

want copyright protection it’s not to be

more innovative without it it’s really

hard to get copyright for databases

tattoo artists they don’t want it it’s

not cool

they share their designs

jokes no copyright protection fireworks

displays the rules of games the smell of

perfume no and some of these industries

may seem sort of marginal to you but

these are the gross sales for low IP

industries industries is very little

sales films and books any pretty

so you talk to people in the fashion

industry like don’t tell anybody we can

actually steal from each other’s designs

it’s embarrassing but you know what it’s

revolutionary and it’s a model that a

lot of other industries like the ones we

just saw with the really small bars they

might have to think about this because

right now those industries with a lot of

atmosphere where it’s as if they don’t

have any protection and they don’t know

what to do when I found out that there

are a whole bunch of industries that

didn’t have copyright protection I

thought what exactly is the underlying

logic I want a picture and the lawyers

do not provide a picture so I made one

these these are the two main sort of

binary opposition’s within the logic of

this but this will do first is something

an artistic object then it deserves

protection is it a utilitarian object

and no it does not deserve protection

this is a difficult unstable binary the

other one is is it an idea is it

something that needs to freely circulate

in a free society no protection or is it

a physically fixed expression of an idea

something that somebody made and they

deserve to own it for a while and make

money from it the problems that digital

technology has completely subverted the

logic of this physically fixed

expression versus idea concept nowadays

we don’t really recognize a book as

something that sits on our shelf or

music is something that is a physical

object that we can hold it’s a digital

file it is barely tethered to any sort

of physical reality in our minds and

these things because we can copy and

transmit them so easily actually

circulate within our culture a lot more

like ideas than like physically

instantiated objects now the conceptual

issues are truly profound when you talk

about creativity and ownership and let

me tell you we don’t want to leave this

just to lawyers to figure out they’re

smart I’m with one he’s my boyfriend

he’s okay

he’s smart he’s smart but you want an

interdisciplinary team of people hashing

this out trying to figure out what is

the kind of ownership model in a digital

world that’s going to lead to the most

innovation and my suggestion is that

fashion might be a really good place to

start looking for a model for creative

industries in the future if you want

more information about this research

project please visit our website it’s

ready to share dot org and I really want

to thank Veronica Hideki for making this

very fashionable presentation thank you

so much