Archive for copyright
Yesterday, I joined “Project Runway” finalist Korto Momolu on an episode of “The Stream,” an innovative multimedia show on al Jazeera English. The topic? Cultural appropriation. Turns out that Momolu has gotten a lot of heat for incorporating African designs and textiles into her work . . . despite the fact that she’s from Liberia. I was part of the mix in order to clarify some of the ownership rules around cultural remix practices in fashion.
When I talk about copyright and fashion outside of the United States, I often get questions about the dangers of cultural appropriation. Shouldn’t it be illegal for Western fashion designers to steal traditional designs from Native American tribes or to appropriate design features from traditional Ethiopian garb?
My research on fashion and intellectual property has focused on the benefits – both to consumers and to the fashion business – of the lack of ownership of designs. Fashion is actually one of several industries that treat their creative output as a commons – shared resources that can be freely reused, recreated and recombined.
This is often music to the ears of free culture activists, libertarians and lots of people in the digital media industries, who have seen first-hand how difficult (and often counter-productive) it is to enforce copyright protections on creative work that can be copied perfectly with one click.
But for people who are concerned about cultural imperialism, this “free culture” sounds like just another opportunity to take advantage of the little guy. And, of course, that does happen. There’s nothing to stop Karl Lagerfeld from knocking off a Tibetan Buddhist robe. But the key question is: would he want to do that? Would that design resonate for the Chanel customer? And would those customers think it’s appropriate to incorporate a design with those political, cultural and religious connotations into French haute couture?
Just because you can appropriate designs from other cultures doesn’t always mean it’s a good idea. Especially in the age of social media, fashion brands and retailers must think twice about the cultural sensitivity of their appropriations before they face a PR firestorm online.
One thing that proponents of cultural protectionism and strict ownership regimes often forget is that once you’re in a position to defend ownership of your own stuff, it also means that everyone else has that right as well. The result? Lots of legal obstacles for cultural exchange. It is more difficult than one might think to determine exactly where a particular clothing design or jewelry design originated. That is one reason that courts in the US have consistently determined that fashion designs should not have copyright protection.
But fashion designers have very powerful intellectual property protection in the form of trademark. And this is where some traditional cultures have played their cards well. It turns out that trying to sell something as a “Navajo” design (as Urban Outfitters recently did) without the permission of the Navajo nation is a big no-no. The federal Indian Arts and Craft Act allowed the tribe to register 10 trademarks covering clothing, footwear and textiles, and they have been aggressively protecting their mark. Trademark protection makes sense here because their brand already has tremendous equity, as a brand manager might put it. “Navajo” has a powerful meaning for people who are familiar with their history. Customers who are inclined to buy something that’s labeled “Navajo” would most likely assume that the tribe was associated with the product. Trademark protection allows customers to be confident in that assumption, while giving the tribe the right to exert control over their products and aesthetics. It’s a win-win situation, and copyright protection plays no part in it.
Like other art forms, fashion is a powerful conduit for cultural diplomacy, translating the aesthetics of one nation or culture to people in far-away places who wouldn’t necessarily have had the occasion to think about that other world. What’s unique about fashion as an aesthetic object is that it’s something you wear: it provides the opportunity for an extremely intimate connection with a foreign perspective and it gives people the opportunity to literally walk in the shoes of another culture. The fact that fashion design elements can be sampled quite freely makes it even more likely that cross-cultural communication can occur … at the very least, in the form of fashion trends.
The May issue of Vanity Fair features a great article about the “War for the Internet,” or, more precisely, the battles over Internet privacy, piracy and security. I found myself in alignment with the group of guys that VF calls the “forces of Organized Chaos,” including Vint Cerf, Jeff Moss, Joshua Corman and Dan Kaminsky. The article’s filled with quotable gems (e.g., “Anonymous is more like a brand or a franchise,”) but here’s a nice sum-up of the “Organized Chaos” vision for the future of the Internet:
…the forces of Organized Chaos, by and large, think that the Internet should be allowed to evolve on its own, the way human societies always have. The forces of Organized Chaos have a pretty good sense of how it will evolve, at least in the short term. The Internet will stratify, as cities did long ago. There will be the mass Internet we already know—a teeming bazaar of artists and merchants and thinkers as well as pickpockets and hucksters and whores. It is a place anyone can enter, anonymously or not, and for free. Travel at your own risk! But anyone who wishes can decide to leave this bazaar for the security of the bank or the government office—or, if you have enough money, the limousine, the Sky Club, the platinum concierge. You will always have to give something up. If you want utter and absolute privacy, you will have to pay for it—or know the right people, who will give you access to their hidden darknets. For some services, you may decide to trade your privacy and anonymity for security. Depending on circumstance and desire, people will range among these worlds.
In this context, structuring the Internet around authentication systems that make it impossible for anyone to remain anonymous seems as foolhardy as insisting upon only non-commercial usage of the Web (and, yes, I’ve heard serious people seriously suggest this.) Finding the right balance between order and chaos on the Web is the era-defining challenge we face right now.
Created by: Paralegal.net
Big thanks to Peter Kim for alerting me to this great new infographic about Hollywood’s convoluted history with piracy and its battle to embrace and defang new technologies.
I am delighted to have been invited to participate in a symposium about fashion and intellectual property law at the University of Pennsylvania Law School March 20. They’ve put together an excellent line-up, and I’m looking forward to discussing the many problems that I see with pending legislation that may grant copyright protection to fashion designs. (You can see some of my thoughts about this here, here, and here.)
If anyone affiliated with the symposium was wondering how the major fashion labels might enforce the new and unprecedented protections that the Innovative Design Protection and Piracy Prevention Act (ID3PA) would grant them, Louis Vuitton gave them their answer on Wednesday. In a condescending cease and desist letter, Michael Pantalony chastised Penn for misappropriating and modifying their trademarks in a promotional poster for the student-run event. Calling it an “egregious action” and a “serious willful infringement” that “knowingly dilutes the LV Trademarks,” Pantalony went on to say that the use would
mislead others into thinking that this type of unlawful activity is somehow ‘legal’ or constitutes ‘fair use’ because the Penn Intellectual property Group is sponsoring a seminar on fashion law and ‘must be experts.’
It doesn’t surprise me at all that an Associate Dean for Communications at the Law School quickly responded to the letter saying they would immediately stop using the posters and invitations: bullying cease and desist letters like this often work that way. When the General Counsel of the University of Pennsylvania, Robert Firestone, saw the letter, he had a very different response, citing several reasons why Pantalony’s claims were absurd.
Trademark protection is meant to protect consumers and companies like Louis Vuitton from imitators who hope to convince potential customers that their products were actually made by the famous brand. Quality control and brand reputation is crucial in the fashion industry and trademark protections are a perfectly logical way to protect customers from fraud and to give companies the tools they need to protect their valuable reputations. Firestone rightly argues that putting a parody of the Louis Vuitton logo on a poster for a student run event about issues surrounding intellectual property protection in the fashion industry would not constitute trademark infringement: obviously, the students are not selling a product of any kind that could be confused with a Louis Vuitton product. Harm done? None. And Pantalony’s additional claim, that people would be mislead into believing that Vuitton is a sponsor of the conference, was also dismissed by Firestone since all the conference sponsors logos are prominently listed on the poster (you can see the full poster here).
Thankfully, in this instance, the students had knowledgeable legal counsel to protect them. But, as you can imagine, that is not always the case. Just imagine the type of bullying that can take place if ID3PA passes: companies with deep pockets will have the ability to scare off lesser-known designers from creating any designs that seem substantially similar to theirs. Introducing design monopolies into the fashion business is a huge mistake that I hope our federal House Representatives will be canny enough to avoid.
Just in case you haven’t noticed, Brazil is really hot right now. With its incandescent economy and its reputation for sensuality and Mardi Gras decadence, Rio de Janeiro, in particular, has attracted an unprecedented amount of global attention. As the sprawling city prepares for the 2014 World Cup and the 2016 Summer Olympics, all eyes have turned to Rio to better understand how it ticks and how it might brace itself for the world stage.
When I was interviewed recently by Ronaldo Lemos for Brazilian MTV, he mentioned a new report that his research institute had issued about the growing Rio fashion industry. Territórios da Moda (Fashion Territories) is currently only available in Portuguese so, after trying my best to read it with Google translate, I asked Ronaldo and the project’s leader Pedro Augusto Pereira Francisco if they would answer some questions about their findings. They generously agreed and so this is Part One of a two-part interview about the inner workings of Rio’s booming fashion scene.
Johanna: I think most people are familiar with the bright colors and body-conscious style that’s typical of fashion in Rio, but you mention in your report a certain “hi-lo blasé” that defines the carioca lifestyle. Could you tell me a little more about that?
Ronaldo & Pedro: Sure, in our research we have identified three important segments in the Rio fashion industry. We have called them “fashion”, “off-fashion”, and the “atelier” circuits. The fashion circuit is the higher-end designers, the off-fashion is the incredible industry that developed in the outskirts of Rio, far from the posh neighborhoods. They are an important economic force, and have become also a creative force. And the ateliers are small-business, producing very exclusive pieces, and doing sometimes conceptual work, in a small scale. There is a lot of diversity in these segments, but they are all influenced to some extent by the image of Rio de Janeiro, that is, a casual-chic mixture, where flip-flops can be mixed with a very well-designed dress, and the combination ends up being a very sophisticated look.
Johanna: You indicate in the report that higher-end designers are less concerned with being copied than with being accused of copying, or getting caught on the back-end of a passing trend. In fact, I think one designer you interviewed said that they need to “escape trends” in order to remain relevant in the marketplace. Could you talk a little more about that?
Ronaldo & Pedro: Absolutely. The “fashion” segment is a fairly recent phenomenon in Brazil. The Rio de Janeiro fashion week (as well as Sao Paulo’s) only really took off in the last 12 years. So it is natural that designers find it important to establish their own identities and make a point that they are not simply copying the trends they saw in the previous shows in New York, London, Paris or Milan. In this sense, it is important to mention that seasons in Brazil are the opposite of what they are in the US and Europe. With that comes the temptation to simply copy the trends presented in the last seasons in the US and Europe. But the movement now is to establish a local identity, to strengthen the local brands and their ideas. There has been quite a lot of consolidation in the market in Brazil, and many local brands have been acquired by investment groups.
Johanna: It sounds like fashion designers in Rio have the option of registering their designs for industrial patents. However, they say it’s impractical to do so because of the cost and the speedy turn-over of product each season. Are designers upset that they don’t have more options to assert ownership control over their work?
Ronaldo & Pedro: Very few designers were upset that they were being copied and wished there existed more effective ways to protect their designs. That opinion is not the majority’s. Many designers realize that protection for the designs is impractical. Therefore, they believe it is very important to protect their trademarks, rather than worry if they are being copied or not. Especially in the atelier circuit, the copy is actually seen as a compliment, and many designers say they feel flattered that their pieces are being copied. Read the rest of this entry »
When I think about mash-ups, I can’t help but think about Julia Kristeva and her notion of intertextuality.
The term has been used in many, many different ways since she first coined it, but, quite generally, she was using it to talk about literature and the way that it exists within not only a network of language but a network of texts. Every text, even something you wrote on a sticky note, is in dialogue with the entire linguistic system – you’ve just selected a few words from that system. Those words, of course, are weighted with meaning: they have a long history of being used by lots of other people, for lots of different purposes – both constructive and nefarious.
Now a literary text – something that’s trying to assert or achieve the status of a cultural object that deserves a reader’s consideration (something more refined than your sticky note) – is part of a network of language and also a network of previous texts. Kristeva was very interested in how it is that the meaning of a piece of literature is produced in the mind of a reader, who cannot help but situate their understanding of that text in a larger context, one that includes what they’ve read before and what the writer is both self-consciously and unconsciously referencing.
If you think about it, the process of writing anything could be described as the process of sampling. Read the rest of this entry »
I’m certainly not the first to point out the similarities between haute couture – rarefied apparel that no normal person would have an occasion to wear – and haute cuisine – exquisitely prepared food that costs a fortune and simply disappears by evening’s end. This last July, the French Ministry of Culture sponsored a posh event at the Palais Royale that celebrated two of France’s most respected exports: in justifying the dual focus, organizers argued that
Though the raw materials may be different, artisans in both trades must master techniques, a “savoir-faire“
and possess a vision to reach the height of their craft . . .
But most foodies and fashionistas don’t realize that there’s an even more elemental connection between cuisine and fashion: neither have a great deal of copyright protection.
In my research on the role that copyright plays in the fashion industry, I came across a few articles mentioning the similarity between recipes – which cannot be copyrighted – and fashion designs, which don’t qualify either. I thought it was fascinating that such creative industries managed to innovate and stay fresh even though fashion designers and chefs have no control over the appropriation of their work by others. The same cannot be said of painters, sculptors, photographers, graphic designers, musicians or writers.
So, as a foodie and a fashion lover, I was delighted to be invited to a unique conference in Barcelona, co-sponsored by Telefónica, Spain’s most prominent telecommunications company, and the El Bulli Foundation, Ferran Adrià’s effort to perform cutting edge research about food and innovation. Gastronomy & Technology Days (check out the Twitter hashtag #gastrotechdays) brought together an incredibly diverse international group of writers, researchers, software engineers and hard-core food bloggers to discuss the intersection of food and technology.
The talks were occasionally mind-bending (e.g., “Hacking the Food Genome”) and participant Rachael McCormack tweeted that the conference was “like TED but with better coffee.” Video will be available soon I’m told, but until then, I thought I’d lay out some of the key points from my keynote speech about the similarities between fashion and food. Read the rest of this entry »
At the recent House Judiciary hearing about granting copyright protection to fashion designs, we heard proponents of the bill claiming that innovation is being quashed because cheap knock-offs are legal. [For background, take a look at my recent blog or my TED talk on the topic.]
Happily, a front-page New York Times article yesterday provided more evidence that the “culture of copying” which drives the fashion industry and its lucrative trend cycles is not having a negative impact on high-end designers. The entire luxury sector is experiencing a boom, with Tiffany, LVMH, and PPR (owner of Gucci and Yves Saint Laurent, among others) revenues up 13%-23% while lower-end retailers, who are often accused of purveying knock-offs, are still suffering in this painful recession. Read the rest of this entry »