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TEDxUSC

Johanna Blakley: Lessons from fashion's free culture

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Copyright law's grip on film, music and software barely touches the fashion industry ... and fashion benefits in both innovation and sales, says Johanna Blakley. In her talk, she talks about what all creative industries can learn from fashion's free culture.

- Media maven
Johanna Blakley studies the impact of mass media and entertainment on our world. Full bio

I heard this amazing story about Miuccia Prada.
00:16
She's an Italian fashion designer.
00:18
She goes to this vintage store in Paris
00:20
with a friend of hers.
00:22
She's rooting around, she finds this one jacket by Balenciaga --
00:24
she loves it.
00:28
She's turning it inside out.
00:30
She's looking at the seams. She's looking at the construction.
00:32
Her friend says, "Buy it already."
00:35
She said, "I'll buy it, but I'm also going to replicate it."
00:37
Now, the academics in this audience may think,
00:42
"Well, that sounds like plagiarism."
00:45
But to a fashionista, what it really is
00:47
is a sign of Prada's genius:
00:49
that she can root through the history of fashion
00:51
and pick the one jacket
00:53
that doesn't need to be changed by one iota,
00:55
and to be current and to be now.
00:57
You might also be asking whether it's possible
01:00
that this is illegal for her to do this.
01:03
Well, it turns out that it's actually not illegal.
01:06
In the fashion industry, there's very little
01:09
intellectual property protection.
01:11
They have trademark protection,
01:14
but no copyright protection
01:16
and no patent protection to speak of.
01:18
All they have, really, is trademark protection,
01:21
and so it means that anybody
01:23
could copy any garment
01:25
on any person in this room
01:27
and sell it as their own design.
01:29
The only thing that they can't copy
01:31
is the actual trademark label
01:33
within that piece of apparel.
01:35
That's one reason that you see logos
01:37
splattered all over these products.
01:39
It's because it's a lot harder for knock-off artists
01:41
to knock off these designs
01:43
because they can't knock off the logo.
01:45
But if you go to Santee Alley, yeah.
01:48
(Laughter) Well, yeah.
01:51
Canal Street, I know.
01:53
And sometimes these are fun, right?
01:55
Now, the reason for this, the reason that the fashion industry
01:57
doesn't have any copyright protection
02:00
is because the courts decided long ago
02:02
that apparel is too utilitarian
02:05
to qualify for copyright protection.
02:07
They didn't want a handful of designers
02:09
owning the seminal building blocks of our clothing.
02:11
And then everybody else would have to license this cuff or this sleeve
02:14
because Joe Blow owns it.
02:17
But too utilitarian? I mean is that the way you think of fashion?
02:21
This is Vivienne Westwood. No!
02:24
We think of it as maybe too silly,
02:27
too unnecessary.
02:29
Now, those of you who are familiar with the logic
02:31
behind copyright protection --
02:33
which is that without ownership, there is no incentive to innovate --
02:35
might be really surprised
02:38
by both the critical success of the fashion industry
02:40
and the economic success of this industry.
02:43
What I'm going to argue today is that
02:46
because there's no copyright protection
02:48
in the fashion industry,
02:50
fashion designers have actually been able to elevate
02:52
utilitarian design,
02:55
things to cover our naked bodies,
02:57
into something that we consider art.
02:59
Because there's no copyright protection
03:01
in this industry,
03:03
there's a very open and creative
03:05
ecology of creativity.
03:07
Unlike their creative brothers and sisters,
03:09
who are sculptors or photographers
03:11
or filmmakers or musicians,
03:14
fashion designers can sample
03:17
from all their peers' designs.
03:19
They can take any element from any garment
03:21
from the history of fashion
03:23
and incorporate it into their own design.
03:25
They're also notorious for riffing off of the zeitgeist.
03:27
And here, I suspect,
03:30
they were influenced by the costumes in Avatar.
03:32
Maybe just a little.
03:35
Can't copyright a costume either.
03:37
Now, fashion designers have
03:39
the broadest palette imaginable
03:41
in this creative industry.
03:43
This wedding dress here
03:45
is actually made of sporks,
03:47
and this dress is actually made of aluminum.
03:50
I've heard this dress actually sort of sounds like wind chimes
03:53
as they walk through.
03:55
So, one of the magical side effects
03:57
of having a culture of copying,
03:59
which is really what it is,
04:01
is the establishment of trends.
04:03
People think this is a magical thing. How does it happen?
04:05
Well, it's because it's legal for people to copy one another.
04:07
Some people believe that
04:10
there are a few people at the top of the fashion food chain
04:12
who sort of dictate to us what we're all going to wear,
04:15
but if you talk to any designer at any level,
04:18
including these high-end designers,
04:20
they always say
04:22
their main inspiration comes from the street:
04:24
where people like you and me remix and match
04:26
our own fashion looks.
04:28
And that's where they really get a lot of their
04:30
creative inspiration,
04:32
so it's both a top-down and a bottom-up kind of industry.
04:35
Now, the fast fashion giants have
04:39
probably benefited the most
04:41
from the lack of copyright protection in the fashion industry.
04:43
They are notorious for knocking off high-end designs
04:46
and selling them at very low prices.
04:49
And they've been faced with a lot of lawsuits,
04:51
but those lawsuits are usually not won by fashion designers.
04:54
The courts have said over and over again, "You don't need
04:57
any more intellectual property protection."
04:59
When you look at copies like this,
05:02
you wonder: How do the luxury high-end brands
05:05
remain in business?
05:07
If you can get it for 200 bucks, why pay a thousand?
05:09
Well, that's one reason we had a conference here at USC a few years ago.
05:12
We invited Tom Ford to come --
05:15
the conference was called, "Ready to Share:
05:17
Fashion and the Ownership of Creativity" --
05:19
and we asked him exactly this question.
05:22
Here's what he had to say.
05:24
He had just come off a successful stint as the lead designer at Gucci,
05:26
in case you didn't know.
05:29
Tom Ford: And we found after much research
05:31
that -- actually not much research, quite simple research --
05:34
that the counterfeit customer was not our customer.
05:36
Johanna Blakley: Imagine that.
05:39
The people on Santee Alley
05:41
are not the ones who shop at Gucci.
05:43
(Laughter)
05:45
This is a very different demographic.
05:48
And, you know, a knock-off is never the same
05:52
as an original high-end design,
05:55
at least in terms of the materials; they're always made of cheaper materials.
05:58
But even sometimes a cheaper version
06:01
can actually have some charming aspects,
06:04
can breathe a little extra life into a dying trend.
06:06
There's lots of virtues of copying.
06:10
One that a lot of cultural critics have pointed to
06:12
is that we now have
06:15
a much broader palette
06:17
of design choices to choose from than we ever have before,
06:19
and this is mainly because of the fast fashion industry, actually.
06:22
And this is a good thing. We need lots of options.
06:25
Fashion, whether you like it or not,
06:27
helps you project who you are to the world.
06:29
Because of fast fashion,
06:33
global trends actually get established much more quickly than they used to.
06:35
And this, actually, is good news to trendsetters;
06:38
they want trends to be set
06:41
so that they can move product.
06:43
For fashionistas,
06:46
they want to stay ahead of the curve.
06:48
They don't want to be wearing what everybody else is wearing.
06:50
And so, they want to move on to the next trend
06:53
as soon as possible.
06:56
I tell you, there is no rest for the fashionable.
06:58
Every season, these designers have to struggle
07:01
to come up with the new fabulous idea that everybody's going to love.
07:03
And this, let me tell you,
07:06
is very good for the bottom line.
07:08
Now of course, there's a bunch of effects
07:11
that this culture of copying has
07:13
on the creative process.
07:15
And Stuart Weitzman is a very successful shoe designer.
07:17
He has complained a lot about people copying him,
07:19
but in one interview I read,
07:22
he said it has really forced him to up his game.
07:24
He had to come up with new ideas,
07:27
new things that would be hard to copy.
07:29
He came up with this Bowden-wedge heel
07:31
that has to be made out of steel or titanium;
07:34
if you make it from some sort of cheaper material,
07:36
it'll actually crack in two.
07:38
It forced him to be a little more innovative. (Music)
07:40
And that actually reminded me
07:43
of jazz great, Charlie Parker.
07:45
I don't know if you've heard this anecdote, but I have.
07:47
He said that one of the reasons he invented bebop
07:50
was that he was pretty sure
07:53
that white musicians wouldn't be able to replicate the sound. (Laughter)
07:55
He wanted to make it too difficult to copy,
08:01
and that's what fashion designers are doing all the time.
08:05
They're trying to put together
08:07
a signature look, an aesthetic
08:09
that reflects who they are.
08:11
When people knock it off, everybody knows
08:13
because they've put that look out on the runway,
08:16
and it's a coherent aesthetic.
08:18
I love these Gallianos.
08:22
Okay, we'll move on. (Laughter)
08:24
This is not unlike the world of comedy.
08:26
I don't know if you know that jokes
08:29
also can't be copyright protected.
08:31
So when one-liners were really popular,
08:33
everybody stole them from one another.
08:36
But now, we have a different kind of comic.
08:38
They develop a persona,
08:40
a signature style, much like fashion designers.
08:42
And their jokes,
08:45
much like the fashion designs by a fashion designer,
08:47
really only work within that aesthetic.
08:49
If somebody steals a joke
08:51
from Larry David, for instance,
08:53
it's not as funny.
08:55
Now, the other thing that fashion designers have done
08:57
to survive in this culture of copying
08:59
is they've learned how to copy themselves.
09:01
They knock themselves off.
09:03
They make deals with the fast fashion giants
09:05
and they come up with a way to sell their product
09:08
to a whole new demographic:
09:10
the Santee Alley demographic.
09:12
Now, some fashion designers will say,
09:14
"It's only in the United States that we don't have any respect.
09:17
In other countries there is protection
09:20
for our artful designs."
09:22
But if you take a look at the two other biggest markets in the world,
09:25
it turns out that the protection that's offered
09:27
is really ineffectual.
09:30
In Japan, for instance, which I think is the third largest market,
09:32
they have a design law; it protects apparel,
09:35
but the novelty standard is so high,
09:38
you have to prove that your garment has never existed before,
09:40
it's totally unique.
09:43
And that's sort of like
09:45
the novelty standard for a U.S. patent,
09:47
which fashion designers never get --
09:49
rarely get here in the states.
09:51
In the European Union, they went in the other direction.
09:53
Very low novelty standard,
09:56
anybody can register anything.
09:58
But even though it's the home of the fast fashion industry
10:00
and you have a lot of luxury designers there,
10:02
they don't register their garments, generally,
10:04
and there's not a lot of litigation.
10:07
It turns out it's because the novelty standard is too low.
10:09
A person can come in and take somebody else's gown,
10:12
cut off three inches from the bottom,
10:15
go to the E.U. and register it as a new, original design.
10:18
So, that does not stop the knock-off artists.
10:21
If you look at the registry, actually,
10:23
a lot of the registered things in the E.U.
10:25
are Nike T-shirts
10:27
that are almost identical to one another.
10:29
But this has not stopped Diane von Furstenberg.
10:32
She is the head of
10:34
the Council of Fashion Designers of America,
10:36
and she has told her constituency that
10:39
she is going to get copyright protection
10:41
for fashion designs.
10:44
The retailers have kind of quashed this notion though.
10:46
I don't think the legislation is going anywhere,
10:48
because they realized it is so hard
10:50
to tell the difference between a pirated design
10:53
and something that's just part of a global trend.
10:55
Who owns a look?
10:58
That is a very difficult question to answer.
11:00
It takes lots of lawyers and lots of court time,
11:02
and the retailers decided that would be way too expensive.
11:05
You know, it's not just the fashion industry
11:10
that doesn't have copyright protection.
11:12
There's a bunch of other industries that don't have copyright protection,
11:14
including the food industry.
11:17
You cannot copyright a recipe
11:19
because it's a set of instructions, it's fact,
11:21
and you cannot copyright the look and feel
11:24
of even the most unique dish.
11:26
Same with automobiles.
11:29
It doesn't matter how wacky they look or how cool they look,
11:31
you cannot copyright the sculptural design.
11:34
It's a utilitarian article, that's why.
11:37
Same with furniture,
11:40
it's too utilitarian.
11:42
Magic tricks, I think they're instructions, sort of like recipes:
11:45
no copyright protection.
11:48
Hairdos, no copyright protection.
11:50
Open source software, these guys decided
11:52
they didn't want copyright protection.
11:54
They thought it'd be more innovative without it.
11:56
It's really hard to get copyright for databases.
11:59
Tattoo artists, they don't want it; it's not cool.
12:02
They share their designs.
12:05
Jokes, no copyright protection.
12:08
Fireworks displays,
12:10
the rules of games,
12:12
the smell of perfume: no.
12:14
And some of these industries may seem
12:17
sort of marginal to you,
12:19
but these are the gross sales
12:21
for low I.P. industries,
12:24
industries with very little copyright protection,
12:26
and there's the gross sales of
12:28
films and books.
12:30
(Applause)
12:32
It ain't pretty.
12:35
(Applause)
12:37
So you talk to people in the fashion industry
12:39
and they're like, "Shhh!
12:41
Don't tell anybody
12:43
we can actually steal from each other's designs.
12:45
It's embarrassing."
12:47
But you know what? It's revolutionary,
12:49
and it's a model that a lot of other industries --
12:51
like the ones we just saw with the really small bars --
12:54
they might have to think about this.
12:57
Because right now, those industries with a lot of copyright protection
12:59
are operating in an atmosphere
13:02
where it's as if they don't have any protection,
13:04
and they don't know what to do.
13:07
When I found out that there are a whole bunch of industries
13:11
that didn't have copyright protection,
13:14
I thought, "What exactly is the underlying logic?
13:16
I want a picture." And the lawyers do not provide a picture,
13:19
so I made one.
13:22
These are the two main
13:24
sort of binary oppositions within the logic of copyright law.
13:27
It is more complex than this, but this will do.
13:30
First: Is something an artistic object?
13:33
Then it deserves protection.
13:36
Is it a utilitarian object?
13:38
Then no, it does not deserve protection.
13:40
This is a difficult, unstable binary.
13:42
The other one is: Is it an idea?
13:45
Is it something that needs to
13:48
freely circulate in a free society?
13:50
No protection.
13:52
Or is it a physically fixed
13:54
expression of an idea:
13:56
something that somebody made
13:58
and they deserve to own it for a while and make money from it?
14:00
The problem is that digital technology
14:03
has completely subverted the logic
14:05
of this physically fixed, expression
14:07
versus idea concept.
14:09
Nowadays,
14:12
we don't really recognize a book
14:14
as something that sits on our shelf
14:16
or music as something that is
14:18
a physical object that we can hold.
14:20
It's a digital file.
14:22
It is barely tethered to any sort of
14:24
physical reality in our minds.
14:26
And these things, because we can copy and transmit them so easily,
14:28
actually circulate within our culture
14:31
a lot more like ideas
14:34
than like physically instantiated objects.
14:36
Now, the conceptual issues are truly profound
14:39
when you talk about creativity
14:42
and ownership
14:44
and, let me tell you, we don't want to leave this just to lawyers to figure out.
14:46
They're smart.
14:49
I'm with one. He's my boyfriend, he's okay.
14:51
He's smart, he's smart.
14:54
But you want an interdisciplinary team of people
14:56
hashing this out,
14:58
trying to figure out: What is the kind of ownership model,
15:00
in a digital world,
15:03
that's going to lead to the most innovation?
15:05
And my suggestion is that
15:07
fashion might be a really good place
15:09
to start looking for a model
15:11
for creative industries in the future.
15:13
If you want more information about this research project,
15:16
please visit our website: it's ReadyToShare.org.
15:19
And I really want to thank Veronica Jauriqui
15:23
for making this very fashionable presentation.
15:25
Thank you so much. (Applause)
15:27

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About the speaker:

Johanna Blakley - Media maven
Johanna Blakley studies the impact of mass media and entertainment on our world.

Why you should listen

As the Deputy Director of the Norman Lear Center (a media-focused think tank at the University of Southern California) Johanna Blakley spends much of her time exploring how our entertainment interacts with our political, commercial and social habits. She is especially interested in the surprising impact of intellectual property rights on innovation, organizing conferences around the lack of creative ownership in fashion as well as technology and the ownership of creative content.

Blakley has worked across a huge variety of media platforms -- producing for the web on a large scale, conducting gaming research, coordinating events for film festivals and executing consumer research on entertainment and politics. Drawing on this vast body of experience, she also lectures at USC and helped develop their masters program in Public Diplomacy.

More profile about the speaker
Johanna Blakley | Speaker | TED.com