This is a guest post that I wrote for the blog of Digital Transformations, a research network exploring digital transformations in the creative relationships between cultural and media organisations and their users. It outlines my thoughts after attending the second of a series of academic workshops on this subject.
At Friday’s workshop the discussion touched on fashion’s approach to intellectual property and how it is different to that of other cultural sectors. (For instance, it was mentioned that in a Guardian webchat the previous evening, Clay Shirky had mentioned that there is no copyright in fashion, but that this had not deterred fashion designers from producing creative designs).
This is an interest of mine: the theoretical part of my PhD on fashion, making and well-being hangs on the idea of fashion being a commons, or a shared cultural resource. I describe the fashion commons as consisting of the huge diversity of dress and garment styles, shapes, fabrics and details from different geographical areas and historical periods. Fashion depends on this broad, varied, vibrant resource, because new fashions involve existing styles revisited, recombined or recontextualised. In ‘Material Culture in the Social World’, Tim Dant describes how fashion ‘acts as a living museum’ and ‘plays promiscuously with the past’, reviving elements from the commons and layering them with new meanings.
The fashion industry is only able to use this commons because of the minimal legal protections that exist for its creative design. The industry actively protects its trademarks, such as brand names and logos, but the design of garments cannot be ‘owned’. In their paper on fashion and IP in the USA, Jenkins and Cox state that because garments are considered ‘useful articles’ by the courts, they are not protected by copyright. There is a similar situation in the UK; while designers have some protection through design right, in practice no-one can own elements like a sleeve shape or a striking silhouette.
Effectively, as Cox and Jenkins say, ‘designers are free to borrow, imitate, recombine, transform and share design elements’. New designs are built on archetypes and previous styles; appropriation and modification are inherent to the fashion design process and entirely legal. This is a striking contrast with the worlds of music, literature and film – at the workshop we heard many examples of how the sampling or remixing of existing content can breach copyright law.
The downside of this lack of protection is the copying which is common practice in high street fashion. I have had my own knitwear designs ripped off by a number of retailers, and found it to be a distressing experience. Although I was successful in gaining recompense in the most extreme case, as I had formally registered my design, most designers know that if you make a few tweaks to a copy then it is very difficult to argue legally. So, I’m a defender of the fashion commons, but complain about copying – isn’t that a contradiction?
I don’t think so – for me, there is a definite difference between remixing and copying. Copying is cynical, lazy and a waste of the talents of the designers our art colleges train every year. Remixing connects us with each other by reviving and recombining things that we recognise, in a new cultural context.
Cox and Jenkins suggest that fashion’s intellectual property regime could provide a model for other sectors. Although I’m no expert, I think I agree. The ‘big picture’ argument for copyright protection is that it enriches the commons, and ensures that creators are sufficiently rewarded to keep creating new content. However, the stories from film, music and literature suggest that the commons are being denied lots of new, remixed material. James Boyle argues that information products are made of fragments of other information, and the increase of protection reduces the supply of these fragments: a cultural ‘Tragedy of the Anticommons’.
Putting these weighty thoughts to one side, I’ll finish by thinking more specifically about the Digital Transformations project, which is (like me) interested in communities of amateur enthusiasts producing innovative material. My particular focus is on amateurs making, and re-making, their own clothing. Just like professional designers, amateur designer-makers can ‘remix’ the fashion commons. Even makers using patterns, which might seem to be prescriptive, can make their own combination of design elements. Patterns are often designed to allow users to choose from various options and features, and makers also branch out to create adaptations not suggested by the pattern, gathering inspiration from all over the place: films, high street shops, catwalks, vintage clothes, street style and so on.
In writing this post, I was reflecting on the other key aspect of the project: the traditional cultural organisations which are starting to engage with amateur producers. I realised that there are very few cultural organisations focusing on fashion and dress; off the top of my head, I can only think of the V&A and the Fashion and Textile Museum. These are isolated examples of institutions that have an interest in encouraging amateur communities to produce their own fashion; most of this activity is carried out by individual designer-makers, like me.
We are far outnumbered by the corporate entities which design, manufacture, sell and promote fashion – all of whom have a vested interest in keeping us as passive consumers. So, although fashion may have a relaxed approach to intellectual property, which could be rewardingly explored by amateur producers, there are few organisations around encouraging anyone to do so.