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. …