Why do fashion, film, and music - the sultans of cool in our culture, the shapers of our consciousness - take such radically different approaches to the control ofcreativity?
The music and film industries continue to battle over the need to expand copyright protection, and to limit sharing and reuse of prior work. The fashion industry, driven by similar market interests, employs a modus operandi that accepts rather than rejects derivation and appropriation as creative tools.
The contrast is particularly fascinating, given the dependence of each of these industries on our shared cultural heritage, which we call the "commons." The music and film industries' resources are being sapped in ongoing battles about the scope of legal protection that their CDs and DVDs should enjoy and whether prior works may be freely reused. These industries are unusually possessive: Their attorneys have gone after consumers who played DVDs on non-Windows software ("piracy"), Girl Scouts who sang copyrighted songs around the campfire ("no performance license"), and kids who set up their own Harry Potter fan websites ("trademark violation").
By contrast, the fashion industry long has accepted that creativity is too large and fugitive an essence to be owned outright as property. Fashion is a massive industry that thrives in a competitive global environment despite minimal legal protections for its creative design. While many people dismiss fashion as trivial and ephemeral, its economic importance and cultural influence are enormous. US apparel sales alone were $180 billion a few years ago, supporting an estimated 80,000 garment factories, and fashion is a major force in music, entertainment, and other creative sectors.
It is precisely because fashion pervades so many aspects of our lives that we fail to appreciate the "social ecology" that supports it - the open sharing, unauthorized innovations, and creative appropriations. To be sure, the fashion industry aggressively protects its brand names and logos, utilizing trademarks and licensing agreements. In most cases, however, the actual creative design of garments is not owned by anyone. The couturier dress worn by a Hollywood starlet on the red carpet can be knocked off immediately and legally appear days later on department store racks.
The Hollywood studios and major record labels consider it self- evident and axiomatic that creativity must be strictly controlled through copyright law, lest it be "stolen" and creators forced out of business. It is a significant point that creators, especially individual artists, need effective, reliable ways to be paid for their work - and copyright offers one important vehicle. But the fashion industry has a deeper faith in the power of creativity. Despite scant legal protection, fashion businesses invest enormous sums in each new season's creative cycle - and reap substantial profits year after year.
For virtually all players in fashion, some form of derivation, recombination, imitation, revival of old styles, and outright knockoff is the norm. Few denounce, let alone sue, the appropriator for "creative theft. …