A lesson from the fashionistas?

You may be surprised to hear that I am not terribly interested in fashion?  However I did find this talk by Johanna Blakely very interesting. 

Blakely points out that in the American Fashion industry, unlike film, music and software, there is very little in the way of intellectual Property(IP) legislation.  The reason being that the courts decided a long time ago that clothing is too Utilitarian to allow anyone to own the building blocks! The only IP law that is rigorously enforced is trademark, that’s one of the reasons such a big deal is made of logo in clothing brands.  You can copy anyone’s design in full and sell it as your own, the only thing that you can’t legally do is put their logo on it.

The usual justification for the protection of IP is that without ownership there is no incentive to  innovate… So how come there is so much money to be made in fashion design and why is there so much creative innovation if nobody owns any of the designs?

Blakely argues that actually the lack of ownership and the freedom to copy has turned something as Utilitarian as what we wear into an art form.  So how is it that the high-end design side of the business can survive when the same designs can be reproduced and mass-produced for a fraction of the price.  The answer is that in the fashion business, the top designers are not selling to the same customers as the “fast fashion” outlets.  Duh!

Actually it turns out that copying rather than stifling innovation and being bad for business has greatly increased the market for global fashion trends at the bottom end of the market and accelerated the need for creative innovation at the top end of the market so that they can set new trends.  Good business for everyone?

Blakely likens the incentive for innovation for the top designers to that of Charlie Parker, who she says invented Be Bop because he was pretty sure that White Guys wouldn’t be able to copy him;-)

She goes on  to point out some other areas where there is no copyright.  For example:

  • The food industry – you can’t copyright a recipe, again food is considered too utilitarian for this type of protection imagine if before preparing a meal you had to seek permission or obtain a license from the owner of the recipe? 
  • Cars, furniture, haircuts all considered too utilitarian for anyone to own the designs. 
  • You can’t copyright a joke.  How would that work exactly?

She then points out that sales in the low IP industries are way higher than in the high IP industries like film, books and music!  I did wonder how fair this comparison was though – I don’t know about you but I do tend to eat food and wear clothes everyday;-) whilst it is a long time since I bought a CD or a DVD and the reason I don’t buy so many CDs and DVDs is not unconnected to modern technologies that allow one to er.. get round IP Legislation.

Surely there is a case to be made for allowing an individual to be given protection and to be allowed to benefit from his ideas and creativity?  This was the original intent of IP legislation, giving individuals ownership rights over intangibles and the exclusive right to profit from them, but over time this intent has expanded both in duration and in definition.  In the US:

“The original, 1790 Copyright Act established a copyright term of 14 years; if the author were still living at the end of that period, he could renew the copyright for an additional 14 years. n3 Over the next two centuries, Congress periodically added to these time periods. n4 Most copyrights acquired today will last for the life of the author plus 50 years, and Congress is seriously considering extending that term for another 20 years.
The growth of Intellectual Property

At the same time untill the middle of the 19thCentury copyright protected only the literal content and nothing more.  Overtime this has changed and now the protection is afforded “in the substance, and not in the form alone” 
The growth of Intellectual Property

What on earth does that mean? It means that you can own not only the intangible idea of something but also the intangible idea of that idea!  Complicated isn’t it?

The other big change is that now most Intellectual Property is claimed by corporations not individuals.

So you now have the ironic example of Disney who spent $4.32 million in the first 3 quarters of 2008 on lobbying, a major focus of Disney’s lobbying is influence over copyright and patent legislation.

Disney’s first feature-length film Snow white was lifted whole scale from the Brothers Grimm (who themselves “collected” it) but now the Disney corporation spend their time making sure theatre productions don’t use the Disney names for the seven dwarves and gagging business activities like the Foundery fruit beers “Ho White” campaign!

Ho White

You also have the example of Microsoft who have pursued an aggressive and well documented policy that uses IP legislation to secure themselves a monopoly in their marketplace the strategy is known within Microsoft as “Embrace, extend and extinguish” and was one of  identifying new product categories adopting the open standards within those categories, extending those standards with proprietary capabilities, and then using those differences to disadvantage its competitors in the market place.

The debate about intellectual Property is one that crosses ideological barriers I am sure that William Morris would have approved of the collective ownership of designs in the fashion industry leading to a blurring of the distinction between utility and art?  At the same time the Mises institute a Libertarian think tank that has published papers describing Adam Smith as a Proto-Marxist who “originated nothing that is true” also published a paper called “Against Intellectual Property”  by Stephan Kinsella that argues:

that a system of property rights in ‘ideal objects’ necessarily requires violation of other individual property rights, e.g., to use one’s own tangible property as one sees fit”

In other words intellectual Property is inconsistent with the individual’s property rights, pretty much the only rights that the Libertarians recognise?

Hmm maybe intellectual property isn’t such a good thing?  Or am I just saying that to justify my moral ambiguity when it comes to listening to music and watching films that really I should pay for?

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One Response to A lesson from the fashionistas?

  1. Norman says:

    Very interesting, It was so good that I read right to the end!

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