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Welcome Wall Street Journal Readers!

An article in today's Wall Street Journal asks, "Can Fashion Be Copyrighted?" -- and, like the post-recess and pre-election Congress, probably leaves the question unanswered for now. 

As WSJ reporter Ben Winograd was preparing this article (with co-author Cheryl Lu-Lien Tan), he and I had an interesting conversation.  Ben described himself to me honestly as neither a fashionista nor a student of intellectual property, and seemed frankly a bit skeptical of the whole enterprise -- but as a journalist and thus a member of a copyright-dependent industry, he expressed interest in the broader issues at hand.  Thus the following excerpt from our discussion, as quoted in today's article:

Fashion design has historically fallen outside the scope of coyright protection because it was considered a craft, not an art, dating back to a time when clothing served to simply cover the body, says [your humble blogger].  Today, "fabric is a means of expression, just like pen or ink," she says. 

Thank you!  Although to clarify, I think that clothing has been a communicative medium (deliberate or incidental) from time immemorial.  A chieftan's robes or a beggar's rags both send a message, and so did Adam & Eve's fig leaves.  As with other technologies, however, the last couple of centuries of industrial development have increased the expressive potential of the medium -- and the opportunities for plagiarism.  And, of course, the need to consider legal intervention to protect creators from copyists. 

Overall, I'm very pleased that Ben picked up on the historical art/craft distinction that I've been discussing publicly for some time now and even described it in the opening of the article as the "central question" to be resolved in the debate over protection for fashion design.  (Definite "yes!" from this reader.)  Of course, my argument is that the distinction is a false one, imposed on us by history, but I'll save my questioning of the entire structure of the IP system for another day.

I must add that I was amused by the article's quoting the sanctimonious concerns of copyists that legal protection might harm creative designers or the industry -- talk about crocodile tears!  That line of argument says more about the speakers themselves and their use of others' work (in any medium) than about the fashion industry.... 

The Usual Suspects:  A Versace gown (on Evangeline Lilly) copyied by A.B.S.


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After reading your post I decided to seek out the Wall Street Journal article, which I thought was interesting but rather unsatisfying - having some of your same objections. I have never found the art/craft distinction to hold water, and especially not in the way that the author distinguished between the two - that in craft "practitioners can and should freely copy one another." Drawing on the work of others in the tradition of one's discipline is a long standing practice in many forms of art. In painting (which is what many think of when they hear the word 'art') artists have been known to heavily borrow subject matter (Roy Lichtenstein's pop art paintings, borrowed from comics; Andy Warhol's most celebrated images, also taken from popular culture) but also to draw upon the tradition itself. Renoir and Degas could not have done the work that they did had Manet not come before them. People frequently malign fashion as frivolous, but it is a highly personal expression of who
we are, and a method of informing others about ourselves (at least in terms of first impressions).

K, thanks for your thoughtful comments -- I completely agree that all forms of art (and science, for that matter) build upon earlier work. The ideal is not simply to copy, but to take what has gone before and create something new. In fact, that ideal is what intellectual property law is supposed to support and promote, by giving artists a chance to reap what they've sown and establish their reputations. It's the creative spark that makes us human, in whatever medium we choose to create. I'm disappointed when those who consider fashion to be merely recursive and "frivolous" -- in large part because of its cultural association with women rather than straight, white men -- use that bias as an excuse to deny emerging designers' need for protection. Too much IP protection can interfere with the creative process, but it is strange that a painting should be protected for the life of the author plus 70 years and a couture gown for not even one second.

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