Why Low IP Restrictions May Increase Your Bottom Line: Q&A with Johanna Blakley on IP Lessons from the Fashion Industry

Johanna Blakley

Technological advances have ushered in the collaborative digital era in which, people co-create and collectively profit from acclaimed films, offer free guides on how to replicate their own 3-d printers, or simply re-mix music from around the world, have generated excitement on the part of creatives and mixed reactions from industry executives. Governments and tech companies alike have had varied responses as some see low IP restrictions as an emerging threat in cloud and mobile technologies. Others, however, like YouTube have chosen to no longer penalize, but monetize copyright infringement. In short, the digital age has not only transformed how we consume and share media, products and services, but is also changing what it means to “own” and “copy” these items.

Still, it seems logical to assume that IP restrictions, preventing others from copying your work, would amount to higher revenue – after all, if people are not allowed to steal your idea, they cannot steal profits away from you…right? Well, Johanna Blakley, PhD, managing director of research at the Norman Lear Center, and head of “Artists, Technology & The Ownership of Creative Content,” argues that enhanced copyright protections will not help industries like that of digital publishing and music survive.

According to Blakley’s extensive research, techies have a lot to learn about IP rights from the business of style. In this interview, she discusses how technology has undone conventional ideas of what can or cannot be copyright protected and what makes ownership models in the fashion industry profitable. We also have a little fun, getting a sense of Blakley’s own personal style and learning what provocative question she would ask classic fashionista Audrey Hepburn.

What do you think is the greatest misconception about intellectual property (IP) rights in the fashion industry?

Outside of the industry, people generally have no idea that there’s basically no copyright protection for fashion designs. People realize that there are knock-offs out there, but they assume that they are illegal. One thing I always try to clarify with people is the difference between a knock-off and a pirated design. A knock-off is an imitation of another design: even if that imitation is extremely similar, there is nothing illegal about it. A pirated design actually passes itself off as the original, usually by copying the trademark label and the logos associated with it. A knock-off doesn’t pass itself off as an “original” while a pirated design, which is illegal, does.

Your research has shown that gross sales for firms with low IP restrictions were dramatically higher than those with high IP restrictions. Can you connect the dots between low IP restrictions and greater sales?

 

 

 

 

 

 

 

 

 

 

The chart that you’re referring to, which I included in my TED talk on this topic, is the one I hear the most about. What I was trying to demonstrate in that chart is that, in terms of gross revenues, the fashion industry dwarfs the music, film and publishing industries – all of which have extremely high copyright protections. My general point was that fashion is a major global industry that remains profitable despite its lack of copyright protection and all the disruptions caused by increasing globalization and digital technologies. Media industries such as music, film and publishing are  experiencing shrinking revenues, in part, because they have been slow to respond to the affordances of new technologies.

My argument is that their continuing attempts to increase copyright protections and lengthen copyright terms will not help them survive. It would be a better idea for them to look to industries like fashion and food, which have figured out a way to survive even though they do not have control over who makes copies of their work. With the rise of 3-D printing, all objects will be copyable in the way that an mp3 file is now. The fashion industry is already partly prepared for that eventuality by developing business models that don’t depend on the monetization of copies.

Also, in your TED talk on what creative industries can learn from fashion, you mention: “Digital technology has completely subverted the logic of [the] physically fixed expression versus idea concept.” What purpose did the distinction between fixed expression and idea originally serve? How is digital technology undoing this binary?

Before the existence of digital technology, works of art (which are protected by copyright) existed in material space. You could touch them and feel them. This materiality partly served as proof that someone had actually made something that deserved copyright protection. If someone were to think up a song or a poem, and not commit it to paper or audio tape or vinyl, it would not be eligible for copyright protection. In the digital age, we have a harder time imagining these artistic objects – songs or poems, for instance – as physically fixed objects. We experience them as infinitely copyable files . . . more akin to the idea in a songwriter’s mind than an LP in your album rack. The devices we typically use to view, play and interact with media these days make us feel as if these creations are not truly physical. Our ability to easily copy them seems natural, given the affordances of our technology, though the copyright code would suggest that we are all pirates for doing so.


The justification for copyright protection has been: “without ownership there is no incentive to innovate.” Can you explain this perspective on ownership?

The general idea is that artists and creators and inventors need an incentive to spend their time and energy making new things. The presumption is that if they are fearful that someone can steal their idea without recourse, they will be tempted to not create new things. It seems a little counter-intuitive to discover that designers in the fashion industry do not own their designs and that many of them realize that if their designs are not copied by anyone, they will probably be less successful.

What, if any, ownership models have you seen that encourage innovation?

I think the intellectual property guidelines that have shaped the fashion industry have been quite successful at encouraging innovation. Designers have strong trademark protections, which have helped them build powerful and meaningful brands that are informative to consumers who must choose products from a crowded field. The lack of copyright protection has allowed designers to sample from any previous designs from the history of fashion without consulting an expensive lawyer. This keeps prices low for consumers and it lowers the barrier to entry for emerging designers who hope to build a trademark with real brand equity. And patent protection is available to designers who invent new, useful technologies – hopefully, we’ll see a lot more experimentation on this front, with all the possibilities of “smart” high-tech apparel.

What would you like to see more of from the creative technological community (broadly defined to include individuals like yourself, creating and harnessing technology to understand and address social problems) over the next few years? 

I’d like to see a lot more bold experimentation! I think the opportunities for open-source computing and 3D printing will eventually transform every industry: we might as well experiment with those technologies now and see just how far we can push them and our notions about authorship, ownership, and the true cultural and economic value of “originals” vs. “copies.”

JOHANNA BLAKLEY

COPYRIGHT CRYER 

Who is your favorite fashion designer from history? 

Oh! There are too many! I must say I worship Issey Miyake, though.

How would you describe your personal fashion style?

I try my best to adjust my self-presentation based on the context, but what I always come back to is comfort! I like to wear layers and shoes that I can walk in for miles.

If you had the chance to meet one of your favorite fashion icons from the 60s, what one question would you ask him or her?

Oh there are so many! But Audrey Hepburn is a stand-out, and I bet she’d have an interesting answer to my question: “Who has flattered you by their imitation of your style and who has annoyed you by it?!”

About Kathryn Buford

Kathryn Buford is a PhD student in sociology whose research explores digital communities across the African diaspora, social entrepreneurship and the arts. Kathryn's work has been featured in various online publications as well as the online magazine for Live Unchained (www.liveunchained.com), which features innovative arts, media and events across the world. Contact her at kathryn@siliconangle.com and follow her on Twitter (@yeskathryn) for takes on creativity, technology, entrepreneurship and society.