At the 2011 Free Culture Conference, Johanna Blakely of the Norman Lear Center spoke candidly about the intersection of intellectual property, copyright, fashion and its impact on creativity and innovation.  As new legislation (The Innovative Design Protection and Piracy Prevention Act) is making it’s way through congress to protect fashion designers, Blakely raises some interesting points that I, as both a Media Ecologist and clothes horse, want to reflect on.  While the Act is aimed at those knock off Louis Vuitton versions you can score for $20- $200 (depending on how authentic you want your fake to be), it has consequences worth considering.

In her talk (and PBS article), Blakely described that while logos and trademarks can be copyrighted, the three dimensional design of the product is not.  Historically, courts have denied fashion designers copyright on their ideas because of a clothing’s utilitarian use. Think of the designs that have proliferated what we wear: the blue jean, the leather jacket, an oxford collar, the high heel shoe (okay, you might be ask just how utilitarian this one is) – but the point is royalties can’t be paid on a three dimensional design that serves a practical function.

Come to think of it: what if The Ramones had trademarked the punk song, or the Sugarhill Gang laid a copyright over the hip-hop genre?  Interestingly (and problematically for the fashion world), Diane von Furstenberg is lobbying congress with the  Prevention Act to ensure future protection of the fashion industry’s designs.  Which means, if she were to have designed her signature, iconic wrap dress with this kind of law in place, any other designers would have to pay her royalties if they wanted to use the concept.  While I am all for giving credit where credit is due (I’ll get to this later), let’s think about this bill for a minute…

Blakely points out that the wrap dress has been around since ancient Greece.  Fashion constantly plays with designs from the past, borrowing inspiration from everything from nature through to the military. For those working in fashion, look at what Melet Mercantile offers – it’s known as the industry’s destination for designers to source archival pieces intended for inspiration and mimesis.  Even a Vanity Fair article celebrates the New York based warehouse of historical relics as “a gold mine for designers looking for the perfect bag handle, belt buckle, Edwardian topcoat, or Civil War epaulet to copy or use for their runway pieces.” While the legislation proposes a three year copyright license – the point remains that copying happens.  Look what the supposed seven year copyright license has done for Disney: their cartoons are in a trademark vault.  Would the same happen to fashion?

To return to Blakely’s point and for all other free culture enthusiasts out here, Culture Industries rely on a freedom of expression to experiment and evolve.  For the fashion world, the main reason it moves so quickly is because of the lack of copyright.  Minimal regulation it what maintains the fashion world’s vibrancy: because there are so few legal obstacles, fads and trends can be created.  Because Marc Jacobs can riff of Rayban and the US Airforce, we get a spin on the aviator sunglasses.  We have inspirational street style blogs like the Satorialist and Mr Newton – who can snap people’s style on the street because it’s outside in the public domain.  No permission is needed to publish the style they caught on camera.  And to add further fuel to the fire: designers (high street and couture) source their ideas from this fashion seen on the pavement and runway.  In sum: copyright can stifle creativity.

And for a sociopolitical argument thrown in here: I can’t afford to spend a cool $325 on a pair of shades, but I really like those aviators, so I’ll be getting the look at a slightly more affordable price point of $14.99.  With a law like this, would we even have a High Street culture of Zaras and H&Ms with their affordable ready to wear disposable remix of couture? And would couture be so popular and emulated to the extent that it is without the support from mass culture, ready and willing to copy and wear the trends the couture establishes? (As a sidenote, Lana Swartz followed Blakeley with a fantastic in depth commentary into the counterfeit culture and authenticity).

Fashion is the ultimate remix culture: everyday people piece together their wardrobes with inspiration taken from high and low culture, across industries and gernres and places.  In fact, fashion icons are celebrated for their craft of the creating the perfect remix. Their outfit is their mixtape: artfully piecing together designer, DIY, vintage, and highstreet into the perfect look (see fashion’s latest darling Alexa Chung, or blogs like the Glamorai, White Lightening, or Man Repeller for their celebrated cerebral spin on fashion). Fashion constantly crosses boundaries, but the question remains – how can we put a copyright on a style or a look without inevitably hindering the creative process?

Man Repeller (Leandra Medine’s eponymous blog), is now a becoming a term commonly used by media outlets to describe the clothes that women love and men hate.  Most of the time, journos site her blog but sometimes they don’t.  At the recent Evolving Influence conference, the point was raised that as the phrase is adopted culturally, credit may not necessarily be given: showing the point that it’s pretty hard to keep track of where a trend or slang term is originated.  Yet, are we looking at a trend or downright plagiarism here? And would more pervasive copyright legislation in the fashion industry protect independent tastemakers like Leandra or, or will heightened intellectual property rights prevent the spread of ideas and trends from happening?

Again, don’t get me wrong here: I am all for giving credit where credit is due. Stealing is wrong. I think I would flip out if I saw a term I created being used without crediting me.  Hypocritically, my blog’s name is a riff from Neil Postman (see my about section).  But my point (and ethical dilemma) is that we need to find a way to encourage a culture of collaboration that can maintain innovation while respecting young (and the old) independent designers out there. Lobbyists for the bill will think a strict trademark copyright license will do that…

How can we make sharing… warm and fuzzy…?

What we really need to be asking is how can we create an environment to encourage participation rather than enable elitism – can the young designers out there (who the bill want to protect), afford a litigation team that the Urban Outfitters or the Diane von Furstenbergs in this world can afford?

Stretching beyond practicability, it’s hard to copyright style, it’s got an intangible quality, why is a girl a muse or an “it” girl?  According to the courts, fashion is part of a peculiar list of things that can’t be copyrighted: smells, magic tricks, hairstyles, furniture, and even jokes are all considered part of the public domain.  Jennifer Aniston would be rich on just the royalties she would have received on her signature Rachel bob.  Arguably, if every hairdresser had to pay a license fee to cut hair that way, would we even know what “A Rachel” is, meaning every woman in America would have been saved from an era of lookalikes and wannabes?

Even in industry with heavy copyright protection: people still violate regulation all the time.  Girl Talk sells out shows at Terminal 5, but the Hip Hop/ Rap industry is still going strong – with or without Greg Gillis.  Or what about all those memes (that Meme Factory track so excellently, and even make the case that fashion is by it’s very nature is a meme)?  Here’s a blog post I wrote a few years ago at NYU that raises some of these questions.

What I am asking is to not be so naive when we celebrate the proposed legislation.  As we all know, copyright is not necessarily black and white. It really does become a gray area when we bring into the equation free culture, creativity, communication, ideas while also protecting rights of creative thinkers and ensuring originality and authenticity.

So. Where to next?  I’d like to discuss what can Creative Commons offer the fashion industry, or even go back to Fair Use to work this one out… In the meantime, it’s time to look at some LOL Cats.

(and yeah, I got this image just from searching “Rachel” on Google Image Search)