Wednesday, May 26, 2010

Lessons on copyright from the fashion industry

Johanna Blakley of has done a terrific TED talk on intellectual property in the fashion industry and the lessons it might provide for other creative industries, or as TED billed it Lessons from Fashion's Free Culture. It's an updated version of the talk she did at iSummit 2008 in Sapporo and the Creativity & Copyright: The Surprising Tale of the Fashion Industry at the Lear Center, also in 2008, but it is still hugely relevant. Thanks to Glyn Moody via twitter for the link to the TED talk.

Blakley speaks engagingly about the vibrant ecology of creativity in the fashion industry despite the fact that fashion is not protected by copyright.  The only IP protection they have is trademarks - they can own their names and trademark signs etc. but not prevent someone from stealing each others' seams, colours, shapes, hemlines, trends.  And in fact fashion trends exist and move quickly precisely because of the ability to copy without having to ask permission.

Many fashion designers complain about this copying and have resorted to lawsuits to prevent it but the courts, even in the US, have consistently declared that 'apparel is too utilitarian'  to qualify for copyright protection.  Designers can own a copyright in a drawing of a dress but can't own a copyright in the dress - the dress is out there to be copied.

So how can the high end (ie expensive) fashion companies stay in business when a mulititude of knockoffs (including counterfeits with the trademarked logo) in cheaper stores and market stalls?  Well though it's not rocket science to it figure out, Tom Ford an ex Gucci guru, has said "the counterfeit customer is not the Gucci customer."  Imagine that.

The thing that jumps out from Blakley's talk, though, is her graph of the gross sales of goods from copyright intensive industries (film, music and books) compared with that of the low copyright industries (automobiles(can't copyright look and feel of a car), food (can't copyright a recipe in theory i.e. set of instructions), fashion and furniture (3 dimensional utilitarian objects can't be copyrighted etc.).  I've done a rough version of the graph below:

Comparatively speaking the copyright intensive part of the entertainment industry represented by movies, books and music is tiny in relation to the output of industries not protected by copyright.

Other things, btw, that can't be copyrighted include jokes (eg one liners though it hasn't stopped folks like Ashley Brilliant registering the copyright in more than 7000 aphorisms and Leo Stoller claiming to own words like "stealth" and "hoax" - no, I'm not kidding), hairstyles, magic tricks, fireworks, the rules of games (eg rules of monopoly), perfume (though you can patent the chemical combinant and trademark the smell).  And interestingly enough though they are entitled to copyright tatoos, tatoo artists find that socially unacceptable - the subculture values sharing.  Yet there is very little scholarship or policymaker interest in thriving low IP industries which might give us a clue to the business models for the entertainment industry of the 21st century.

Blakley essentially wants us to have a deeper understanding of what facilitates creativity and innovation and the importance of sharing, openness, fair use doctrine and the lessons of free culture from the low IP industries.  Most of us have a very vague grasp of all of these things and until we stop equating sharing with theft and treating openness and valueless, she doesn't believe we're going to make a lot of progress.  On the contrary, if we keep buying into the "property is good, therefore more property is better matra" crativity and innovation will get increasingly controlled and stifled.


Update: Apologies for the formatting problem with the gross sales graph which hopefully are now corrected.

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