The Intellectual Property of Fashion – Where the Value Lies

I was recently watching a very compelling argument, presented by Johanna Blakley during the 2010 TED conference, positing that the use of intellectual property (IP) protections in fashion (which receives little to no protection currently) should be discouraged as this results in a democratization of fashion and innovation for the industry.  (You can view the entire video Here.)

This is a topic that has always held a lot of interest for me.  On the one hand, I have been a personal witness to the democratizing effect that open source software has provided in nearly every technology arena.  This effect has in truth defined many aspects of my own profession career, and has helped set the boundaries for the single most influential industry since the advent of agriculture. 

As an intelligent person, I can certainly recognize that there are fundamental differences between the utility of creation of a software operating system and the artistic expression of the mathematics defining artificial intelligence. The first example is something which nearly every company (with the notable exception of Microsoft) has released, in some form, as open source.  The second has many open source avenues of expression, but nearly all advanced work being performed in this arena is tightly controlled and jealously defended. 

This argument really all boils down to a question of novelty.  There are many high quality and fully functional operating systems in the world today, and their novelty is low.  The same statement cannot however be made for the second example, and  as the novelty increases so follows the IP protections, both explicit as well as implied within the law.

The same argument can, and in my opinion should, apply to the fashion industry.  As I see it, there are in fact two separate industries that are coupled together by the term fashion industry. 

On the one hand, you have the garment industry, which for the sake of my argument will encompass all aspects of clothing, shoes, accessories, etc.  This is an industry with no need for IP protection.  It produces whatever it is told to produce, with nearly all innovation being driven by the economies therein, and the end result is neither original nor does it possess any significant degree of novelty.

On the other hand, you have what I will call the ‘style industry’.  This is an industry of creativity and artistic expression.  It takes the components (or building blocks) of the garment industry and it uses them as a palette to create highly individualized expressions of those base components.  This results in a steady stream of originality, and the novelty of each creation is very high and as such should be regarded as protectable.

In other words, nobody can or should be able to receive IP protection for a type of shirt collar.  However, a shirt collar, included in a new design, with a specific original pattern, utilized to create a new aesthetic, should certainly be worthy of protection. 

It is no different than an author combining letters and words to create a novel.  It is no different than a painter utilizing canvas and oils to create a vista.  It is no different than a sculptor applying chisel to stone in order to create a statue.  All of these other works are fully protected.  Indeed, they don’t even require registration; they are simply protected because they are recognized as art. 

Perhaps I am being a bit obtuse, but I fail to see how the medium and method of creation (in this case sewing fabrics, beading, etc) is any different from these other methods of expression.

Low IP Industries vastly exceed high IP industries in
terms of gross sales.

In her presentation, Johanna really drives the point home with this graphic.  It certainly does make an excellent argument for low IP being the way to go.  IF…

If what you are concerned with as a creator of fashion is profit.

I will not argue that there is not a significant financial incentive to keeping the status quo.  In fact, while many prominent designers and the CFDA regularly rattle their collective sabers on this topic, I have over the years noticed that nothing ever actually happens.  Is this simply a protectionist move?  Perhaps, and an understandable one which protects the large players in this game at the expense of the new-comer ‘starving artists’.

Ultimately though, I believe that there is a certain amount of philosophical truth to the statement that suffering is art.  If the fashion community has a true desire to be recognized for the art that is produced, and as the artists that they truly are, then some amount of fight, and some amount of suffering, will be required.  Sacrifice is the true measure of conviction, and it is the strength of conviction of the Diane vonFurstenbergs and Marc Jacobses of the world, their tenacity in their cause and their will to persevere, that will ultimately determine the end result of this argument.

Finally, I believe that the end result of this struggle defines a value far greater than what the above chart would indicate; a value of aesthetic, a value of function and a value of expression.  Currently, the industry is really only receiving remuneration on two of those values… why not the third?