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
copyright protection and no patent
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
copyright protection which is that
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
copyright protection in the fashion
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
register their garments generally and
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
register it as a new original design so
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
copyright protection for fashion designs
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
copyright protection there’s a bunch of
other industries that don’t have
copyright protection including the food
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
copyright protection and there’s a gross
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
copyright protection are operating in an
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
copyright law it is more complex than
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