LAW/FASH-TED Talks-Johanna Blakley.Lessons from fashion´s free culture

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Transcript:
I heard this amazing story about Miuccia Prada.She's an Italian fashion designer.She goes to this vintage store in Pariswith a friend of hers.She's rooting around, she finds this one jacket by Balenciaga --she loves it.She's turning it inside out.She's looking at 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 isis a sign of Prada's genius:that she can root through the history of fashionand pick the one jacketthat 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 possiblethat this is illegal for her to do this.Well, it turns out that it's actually not illegal.In the fashion industry, there's very littleintellectual property protection.They have trademark protection,but no copyright protectionand no patent protection to speak of.All they have, really, is trademark protection,and so it means that anybodycould copy any garmenton any person in this roomand sell it as their own design.The only thing that they can't copyis the actual trademark labelwithin that piece of apparel.That's one reason that you see logossplattered all over these products.It's because it's a lot harder for knock-off artiststo knock off these designsbecause they can't knock off the logo.But if you go to Santee Alley, yeah.(Laughter) Well, yeah.Canal Street, I know.And sometimes these are fun, right?

Now, the reason for this, the reason that the fashion industrydoesn't have any copyright protectionis because the courts decided long agothat apparel is too utilitarianto qualify for copyright protection.They didn't want a handful of designersowning the seminal building blocks of our clothing.And then everybody else would have to license this cuff or this sleevebecause Joe Blow owns it.But too utilitarian? I mean is that the way you think of fashion?This is Vivienne Westwood. No!We think of it as maybe too silly,too unnecessary.

Now, those of you who are familiar with the logicbehind copyright protection --which is that without ownership, there is no incentive to innovate --might be really surprisedby both the critical success of the fashion industryand the economic success of this industry.What I'm going to argue today is thatbecause there's no copyright protectionin the fashion industry,fashion designers have actually been able to elevateutilitarian design,things to cover our naked bodies,into something that we consider art.Because there's no copyright protectionin this industry,there's a very open and creativeecology of creativity.

Unlike their creative brothers and sisters,who are sculptors or photographersor filmmakers or musicians,fashion designers can samplefrom all their peers' designs.They can take any element from any garmentfrom the history of fashionand incorporate it into their own design.They're also notorious for 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 havethe broadest palette imaginablein this creative industry.This wedding dress hereis actually made of sporks,and this dress is actually made of aluminum.I've heard this dress actually sort of sounds like wind chimesas they walk through.So, one of the magical side effectsof 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 thatthere are a few people at the top of the fashion food chainwho 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 saytheir main inspiration comes from the street:where people like you and me remix and matchour own fashion looks.And that's where they really get a lot of theircreative inspiration,so it's both a top-down and a bottom-up kind of industry.

Now, the fast fashion giants haveprobably benefited the mostfrom the lack of copyright protection in the fashion industry.They are notorious for knocking off high-end designsand 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 needany more intellectual property protection."When you look at copies like this,you wonder: How do the luxury high-end brandsremain in business?If 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 and 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.

Tom Ford: And we found after much researchthat -- actually not much research, quite simple research --that the counterfeit customer was not our customer.

Johanna Blakley: Imagine that.The people on Santee Alleyare not the ones who shop at Gucci.(Laughter)This is a very different demographic.And, you know, a knock-off is never the sameas an original high-end design,at least in terms of the materials; they're always made of cheaper materials.But even sometimes a cheaper versioncan 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 tois that we now havea much broader paletteof 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 setso 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 trendas soon as possible.

I tell you, there is no rest for the fashionable.Every season, these designers have to struggleto come up with the new fabulous idea that everybody's going to love.And this, let me tell you,is very good for the bottom line.Now of course, there's a bunch of effectsthat this culture of copying hason 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 it has 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 Bowden-wedge heelthat has to be made out of steel or titanium;if you make it from some sort of cheaper material,it'll actually crack in two.It forced him to be a little more innovative. (Music)

And that actually reminded meof 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 bebopwas that he was pretty surethat white musicians wouldn't be able to replicate the sound. (Laughter)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 togethera signature look, an aestheticthat reflects who they are.When people knock it off, everybody knowsbecause they've put that look out on the runway,and it's a coherent aesthetic.

I love these Gallianos.Okay, we'll move on. (Laughter)

This is not unlike the world of comedy.I don't know if you know that jokesalso 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 a jokefrom Larry David, for instance,it's not as funny.

Now, the other thing that fashion designers have doneto survive in this culture of copyingis they've learned how to copy themselves.They knock themselves off.They make deals with the fast fashion giantsand they come up with a way to sell their productto 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 protectionfor 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 offeredis really ineffectual.In Japan, for instance, which I think is the 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 likethe 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 industryand 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 E.U. and register it as a new, original design.So, that does not stop the knock-off artists.If you look at the registry, actually,a lot of the registered things in the E.U.are Nike T-shirtsthat are almost identical to one another.

But this has not stopped Diane von Furstenberg.She is the head ofthe Council of Fashion Designers of America,and she has told her constituency thatshe is going to get copyright protectionfor fashion designs.The retailers have kind of quashed this notion though.I don't think the legislation is going anywhere,because they realized it is so hardto tell the difference between a pirated designand 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 the fashion industrythat 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 recipebecause it's a set of instructions, it's fact,and you cannot copyright the look and feelof even the most 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,it's too utilitarian.Magic tricks, I think they're instructions, sort of like recipes:no copyright protection.Hairdos, no copyright protection.Open source software, these guys decidedthey didn't want copyright protection.They thought it'd 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 seemsort of marginal to you,but these are the gross salesfor low I.P. industries,industries with very little copyright protection,and there's the gross sales offilms and books.(Applause)It ain't pretty.

(Applause)

So you talk to people in the fashion industryand they're like, "Shhh!Don't tell anybodywe 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 protectionare operating in an atmospherewhere 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 industriesthat 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 are the two mainsort of binary oppositions 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?Then 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 tofreely circulate in a free society?No protection.Or is it a physically fixedexpression of an idea:something that somebody madeand they deserve to own it for a while and make money from it?The problem is that digital technologyhas completely subverted the logicof this physically fixed, expressionversus idea concept.Nowadays,we don't really recognize a bookas something that sits on our shelfor music as something that isa physical object that we can hold.It's a digital file.It is barely tethered to any sort ofphysical reality in our minds.And these things, because we can copy and transmit them so easily,actually circulate within our culturea lot more like ideasthan like physically instantiated objects.

Now, the conceptual issues are truly profoundwhen you talk about creativityand ownershipand, 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 peoplehashing 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 thatfashion might be a really good placeto start looking for a modelfor creative industries in the future.

If you want more information about this research project,please visit our website: it's ReadyToShare.org.And I really want to thank Veronica Jauriquifor making this very fashionable presentation.

Thank you so much. (Applause)