Intellectual Property Law and the Sumptuary Code

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TABLE OF CONTENTS

INTRODUCTION                                                     810

I. THE SUMPTUARY CODE AND THE PROBLEM OF COPYING TECHNOLOGY      817

   A. The Sumptuary Code and the Fashion Process                 819
   B. The Limits of Competitive Consumption                      824
   C. The Social Problem of Copying Technology                   830

II. INTELLECTUAL PROPERTY LAW AS SUMPTUARY LAW                   836

   A. The Ideology of the Copy                                   840
   B. Intellectual Property Law as Antidilution Law              845
       1. The Legal and Cultural Concept of Dilution             845
       2. Trademark Law as Antidilution Law                      848
       3. Copyright Law as Antidilution Law                      859
       4. Design Protection Law as Antidilution Law              862
   C. Intellectual Property Law as Authenticity Law              868
       1. Geographical Indications Protection                    870
         (a) TRIPS Article 23                                    871
         (b) The U.S.-E.C. Wine Agreement of 2006                873
       2. Traditional Cultural Expressions Protection            875

III. THE FAILURE OF INTELLECTUAL PROPERTY LAW AS SUMPTUARY LAW   878

   A. The Futility of Sumptuary Intellectual Property Law        880
   B. From Sumptuary to Philanthropic Intellectual Property Law  884

CONCLUSION: FIAT PROPERTY 888

INTRODUCTION

The Roman leges sumptuariae sought to regulate luxury expenditure and enforce social hierarchy in republican and imperial Rome. (1) Since these early Roman precursors, the history of sumptuary law has been a bizarre one. (2) Consider the Japanese decree of 1668 that provided that "[p]uppet costumes must not be sumptuous. Gold and silver leaf must not be used on anything. But puppet generals only may wear gold and silver hats." (3) Or consider a sumptuary ordinance of seventeenth-century Nuremberg that lamented that "[i]t is unfortunately an established fact that both men- and womenfolk have, in utterly irresponsible manner, driven extravagance in dress and new styles to such shameful and wanton extremes that the different classes are barely to be known apart." (4) Most remarkable, perhaps, is the behavior of the Venetian Senate. In 1472, it called for the appointment of Provveditori sopra le Pompe, supervisors of luxury, to enforce the state's sumptuary laws, (5) and in 1511, it issued, not for the last time, (6) a decree to the effect that "all new fashions are banned. ... [H]ence-forth no new fashion that may be imagined or told shall be suffered." (7) The next year, as the powerful League of Cambrai prepared to attack, the Senate found itself debating sleeve widths and shoe designs. (8) But it is not just the content of such laws that may strike the reader as strange. For all of the "enormous sumptuary productivity" (9) of early modern Europe or the "ferocity of detail" (10) of Tokugawa sumptuary law, these laws were almost invariably ignored, circumvented, or openly defied (11)--so that an eighteenth-century London stage character would declare: "I don't care for it, now it is not prohibited." (12) Indeed, the history of sumptuary law is filled with the likes of one Hannah Lyman, who, in 1676, chose to appear before a court in Northampton, Massachusetts, in the very dress that she was proscribed from and there being tried for wearing. (13)

Though historians have advanced many competing theories to explain the pervasiveness and persistence of sumptuary regulation in human social history, one general proposition appears to be well accepted: societies impose sumptuary laws in an effort to regulate and enforce their sumptuary codes. A society's sumptuary code (14) is its system of consumption practices, akin to a language (or at least "a set of dialects" (15)), by which individuals in the society signal through their consumption their differences from and similarities to others. …