Johanna Blakely: Lessons from fashion's free culture

202,526 views ・ 2010-05-25

TED


Please double-click on the English subtitles below to play the video.

00:16
I heard this amazing story about Miuccia Prada.
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She's an Italian fashion designer.
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She goes to this vintage store in Paris
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with a friend of hers.
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She's rooting around, she finds this one jacket by Balenciaga --
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she loves it.
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She's turning it inside out.
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She's looking at the seams. She's looking at the construction.
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Her friend says, "Buy it already."
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She said, "I'll buy it, but I'm also going to replicate it."
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Now, the academics in this audience may think,
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"Well, that sounds like plagiarism."
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But to a fashionista, what it really is
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is a sign of Prada's genius:
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that she can root through the history of fashion
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and pick the one jacket
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that doesn't need to be changed by one iota,
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and to be current and to be now.
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You might also be asking whether it's possible
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that this is illegal for her to do this.
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Well, it turns out that it's actually not illegal.
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In the fashion industry, there's very little
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intellectual property protection.
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They have trademark protection,
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but no copyright protection
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and no patent protection to speak of.
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All they have, really, is trademark protection,
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and so it means that anybody
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could copy any garment
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on any person in this room
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and sell it as their own design.
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The only thing that they can't copy
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is the actual trademark label
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within that piece of apparel.
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That's one reason that you see logos
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splattered all over these products.
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It's because it's a lot harder for knock-off artists
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to knock off these designs
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because they can't knock off the logo.
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But if you go to Santee Alley, yeah.
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(Laughter) Well, yeah.
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Canal Street, I know.
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And sometimes these are fun, right?
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Now, the reason for this, the reason that the fashion industry
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doesn't have any copyright protection
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is because the courts decided long ago
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that apparel is too utilitarian
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to qualify for copyright protection.
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They didn't want a handful of designers
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owning the seminal building blocks of our clothing.
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And then everybody else would have to license this cuff or this sleeve
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because Joe Blow owns it.
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But too utilitarian? I mean is that the way you think of fashion?
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This is Vivienne Westwood. No!
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We think of it as maybe too silly,
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too unnecessary.
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Now, those of you who are familiar with the logic
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behind copyright protection --
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which is that without ownership, there is no incentive to innovate --
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might be really surprised
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by both the critical success of the fashion industry
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and the economic success of this industry.
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What I'm going to argue today is that
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because there's no copyright protection
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in the fashion industry,
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fashion designers have actually been able to elevate
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utilitarian design,
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things to cover our naked bodies,
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into something that we consider art.
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Because there's no copyright protection
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in this industry,
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there's a very open and creative
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ecology of creativity.
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Unlike their creative brothers and sisters,
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who are sculptors or photographers
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or filmmakers or musicians,
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fashion designers can sample
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from all their peers' designs.
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They can take any element from any garment
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from the history of fashion
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and incorporate it into their own design.
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They're also notorious for riffing off of the zeitgeist.
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And here, I suspect,
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they were influenced by the costumes in Avatar.
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Maybe just a little.
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Can't copyright a costume either.
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Now, fashion designers have
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the broadest palette imaginable
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in this creative industry.
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This wedding dress here
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is actually made of sporks,
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and this dress is actually made of aluminum.
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I've heard this dress actually sort of sounds like wind chimes
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as they walk through.
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So, one of the magical side effects
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of having a culture of copying,
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which is really what it is,
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is the establishment of trends.
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People think this is a magical thing. How does it happen?
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Well, it's because it's legal for people to copy one another.
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Some people believe that
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there are a few people at the top of the fashion food chain
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who sort of dictate to us what we're all going to wear,
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but if you talk to any designer at any level,
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including these high-end designers,
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they always say
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their main inspiration comes from the street:
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where people like you and me remix and match
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our own fashion looks.
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And that's where they really get a lot of their
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creative inspiration,
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so it's both a top-down and a bottom-up kind of industry.
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Now, the fast fashion giants have
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probably benefited the most
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from the lack of copyright protection in the fashion industry.
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They are notorious for knocking off high-end designs
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and selling them at very low prices.
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And they've been faced with a lot of lawsuits,
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but those lawsuits are usually not won by fashion designers.
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The courts have said over and over again, "You don't need
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any more intellectual property protection."
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When you look at copies like this,
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you wonder: How do the luxury high-end brands
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remain in business?
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If you can get it for 200 bucks, why pay a thousand?
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Well, that's one reason we had a conference here at USC a few years ago.
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We invited Tom Ford to come --
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the conference was called, "Ready to Share:
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Fashion and the Ownership of Creativity" --
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and we asked him exactly this question.
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Here's what he had to say.
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He had just come off a successful stint as the lead designer at Gucci,
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in case you didn't know.
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Tom Ford: And we found after much research
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that -- actually not much research, quite simple research --
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that the counterfeit customer was not our customer.
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Johanna Blakley: Imagine that.
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The people on Santee Alley
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are not the ones who shop at Gucci.
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(Laughter)
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This is a very different demographic.
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And, you know, a knock-off is never the same
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as an original high-end design,
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at least in terms of the materials; they're always made of cheaper materials.
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But even sometimes a cheaper version
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can actually have some charming aspects,
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can breathe a little extra life into a dying trend.
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There's lots of virtues of copying.
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One that a lot of cultural critics have pointed to
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is that we now have
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a much broader palette
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of design choices to choose from than we ever have before,
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and this is mainly because of the fast fashion industry, actually.
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And this is a good thing. We need lots of options.
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Fashion, whether you like it or not,
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helps you project who you are to the world.
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Because of fast fashion,
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global trends actually get established much more quickly than they used to.
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And this, actually, is good news to trendsetters;
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they want trends to be set
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so that they can move product.
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For fashionistas,
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they want to stay ahead of the curve.
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They don't want to be wearing what everybody else is wearing.
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And so, they want to move on to the next trend
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as soon as possible.
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I tell you, there is no rest for the fashionable.
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Every season, these designers have to struggle
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to come up with the new fabulous idea that everybody's going to love.
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And this, let me tell you,
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is very good for the bottom line.
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Now of course, there's a bunch of effects
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that this culture of copying has
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on the creative process.
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And Stuart Weitzman is a very successful shoe designer.
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He has complained a lot about people copying him,
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but in one interview I read,
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he said it has really forced him to up his game.
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He had to come up with new ideas,
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new things that would be hard to copy.
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He came up with this Bowden-wedge heel
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that has to be made out of steel or titanium;
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if you make it from some sort of cheaper material,
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it'll actually crack in two.
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It forced him to be a little more innovative. (Music)
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And that actually reminded me
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of jazz great, Charlie Parker.
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I don't know if you've heard this anecdote, but I have.
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He said that one of the reasons he invented bebop
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was that he was pretty sure
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that white musicians wouldn't be able to replicate the sound. (Laughter)
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He wanted to make it too difficult to copy,
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and that's what fashion designers are doing all the time.
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They're trying to put together
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a signature look, an aesthetic
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that reflects who they are.
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When people knock it off, everybody knows
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because they've put that look out on the runway,
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and it's a coherent aesthetic.
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I love these Gallianos.
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Okay, we'll move on. (Laughter)
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This is not unlike the world of comedy.
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I don't know if you know that jokes
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also can't be copyright protected.
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So when one-liners were really popular,
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everybody stole them from one another.
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But now, we have a different kind of comic.
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They develop a persona,
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a signature style, much like fashion designers.
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And their jokes,
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much like the fashion designs by a fashion designer,
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really only work within that aesthetic.
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If somebody steals a joke
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from Larry David, for instance,
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it's not as funny.
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Now, the other thing that fashion designers have done
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to survive in this culture of copying
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is they've learned how to copy themselves.
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They knock themselves off.
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They make deals with the fast fashion giants
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and they come up with a way to sell their product
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to a whole new demographic:
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the Santee Alley demographic.
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Now, some fashion designers will say,
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"It's only in the United States that we don't have any respect.
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In other countries there is protection
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for our artful designs."
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But if you take a look at the two other biggest markets in the world,
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it turns out that the protection that's offered
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is really ineffectual.
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In Japan, for instance, which I think is the third largest market,
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they have a design law; it protects apparel,
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but the novelty standard is so high,
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you have to prove that your garment has never existed before,
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it's totally unique.
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And that's sort of like
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the novelty standard for a U.S. patent,
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which fashion designers never get --
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rarely get here in the states.
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In the European Union, they went in the other direction.
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Very low novelty standard,
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anybody can register anything.
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But even though it's the home of the fast fashion industry
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and you have a lot of luxury designers there,
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they don't register their garments, generally,
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and there's not a lot of litigation.
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It turns out it's because the novelty standard is too low.
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A person can come in and take somebody else's gown,
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cut off three inches from the bottom,
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go to the E.U. and register it as a new, original design.
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So, that does not stop the knock-off artists.
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If you look at the registry, actually,
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a lot of the registered things in the E.U.
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are Nike T-shirts
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that are almost identical to one another.
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But this has not stopped Diane von Furstenberg.
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She is the head of
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the Council of Fashion Designers of America,
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and she has told her constituency that
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she is going to get copyright protection
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for fashion designs.
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The retailers have kind of quashed this notion though.
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I don't think the legislation is going anywhere,
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because they realized it is so hard
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to tell the difference between a pirated design
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and something that's just part of a global trend.
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Who owns a look?
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That is a very difficult question to answer.
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It takes lots of lawyers and lots of court time,
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and the retailers decided that would be way too expensive.
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You know, it's not just the fashion industry
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that doesn't have copyright protection.
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There's a bunch of other industries that don't have copyright protection,
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including the food industry.
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You cannot copyright a recipe
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because it's a set of instructions, it's fact,
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and you cannot copyright the look and feel
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of even the most unique dish.
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Same with automobiles.
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It doesn't matter how wacky they look or how cool they look,
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you cannot copyright the sculptural design.
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It's a utilitarian article, that's why.
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Same with furniture,
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it's too utilitarian.
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Magic tricks, I think they're instructions, sort of like recipes:
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no copyright protection.
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Hairdos, no copyright protection.
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Open source software, these guys decided
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they didn't want copyright protection.
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They thought it'd be more innovative without it.
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It's really hard to get copyright for databases.
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Tattoo artists, they don't want it; it's not cool.
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They share their designs.
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Jokes, no copyright protection.
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Fireworks displays,
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the rules of games,
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the smell of perfume: no.
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And some of these industries may seem
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sort of marginal to you,
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but these are the gross sales
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for low I.P. industries,
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industries with very little copyright protection,
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and there's the gross sales of
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films and books.
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(Applause)
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It ain't pretty.
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(Applause)
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So you talk to people in the fashion industry
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and they're like, "Shhh!
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Don't tell anybody
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we can actually steal from each other's designs.
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It's embarrassing."
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But you know what? It's revolutionary,
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and it's a model that a lot of other industries --
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like the ones we just saw with the really small bars --
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they might have to think about this.
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Because right now, those industries with a lot of copyright protection
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are operating in an atmosphere
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where it's as if they don't have any protection,
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and they don't know what to do.
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When I found out that there are a whole bunch of industries
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that didn't have copyright protection,
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I thought, "What exactly is the underlying logic?
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I want a picture." And the lawyers do not provide a picture,
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so I made one.
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These are the two main
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sort of binary oppositions within the logic of copyright law.
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It is more complex than this, but this will do.
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First: Is something an artistic object?
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Then it deserves protection.
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Is it a utilitarian object?
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Then no, it does not deserve protection.
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This is a difficult, unstable binary.
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The other one is: Is it an idea?
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Is it something that needs to
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freely circulate in a free society?
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No protection.
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Or is it a physically fixed
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expression of an idea:
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something that somebody made
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and they deserve to own it for a while and make money from it?
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The problem is that digital technology
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has completely subverted the logic
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of this physically fixed, expression
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versus idea concept.
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Nowadays,
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we don't really recognize a book
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as something that sits on our shelf
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or music as something that is
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a physical object that we can hold.
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It's a digital file.
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It is barely tethered to any sort of
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physical reality in our minds.
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And these things, because we can copy and transmit them so easily,
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actually circulate within our culture
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a lot more like ideas
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than like physically instantiated objects.
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Now, the conceptual issues are truly profound
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when you talk about creativity
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and ownership
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and, let me tell you, we don't want to leave this just to lawyers to figure out.
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They're smart.
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I'm with one. He's my boyfriend, he's okay.
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He's smart, he's smart.
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But you want an interdisciplinary team of people
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hashing this out,
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trying to figure out: What is the kind of ownership model,
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in a digital world,
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that's going to lead to the most innovation?
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And my suggestion is that
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fashion might be a really good place
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to start looking for a model
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for creative industries in the future.
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If you want more information about this research project,
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please visit our website: it's ReadyToShare.org.
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And I really want to thank Veronica Jauriqui
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for making this very fashionable presentation.
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Thank you so much. (Applause)
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