Low Copyright Protection:
Can the Music Business Learn From the Fashion Industry’s Struggles?
By Jessamyn Gangi | GEMB | Berklee Valencia | 20.12.2012
When considering the notoriously low level of intellectual property copyright protection given to the music business, one must also remember the history of the medium. "Even as late as in the 19th century, Beethoven didn’t have to buy a licensefor writing the Diabelli Variations, 83 variations on a waltz written by the Austrian Anton Diabelli” ....And, “[The] entire genre of Blues music is, as a matter of fact, a variation of only one song, the twelve bar harmonic scheme.” [1]
In the past decade, the entire music industry has been faced with the formidable challenge of protecting its business. It has become clear that a level of adaptation is the only way to survive, and that changing revenue streams has been essential. For consumers, tracks are shared at lightning speed; they have it better than they ever have. For artists, potential trends can be copied and sounds can be stolen resulting in a very unsteady existence and an entire industry in turmoil.
With similarly low protection, a clothing designer is, and has always been, in the same predicament. However, many argue that fashion is an example of how an industry potentially does not just survive without copyright protection, it flourishes. Perhaps IP protection is not as necessary as one might think for innovationand success in these creative industries. As music struggles to find its home in the swiftly changing world of copyright and copyleft, could the example of the fashion industry serve as a potential model for progress not only as a story of survival but as an example of thriving success and a fertile soil in which to grow and foster future innovation?
The question has been asked; why does an artist continue to create if they know their work will be copied or imitated? This concern can be found in many industries: comedy, cuisine, technology, even finance. Depending on the field of expertise, the answer will vary. Take sports, for example. A play may be fully choreographed, completely original, and ready to be reproduced. However, the time it takes for an entire team to learn, train and execute such a production will take so long that the ‘first mover advantage’ will be lost. It is this constant struggle of innovation that keeps competition fierce in many industries. Music is no exception. Given the changing landscape of music and the industry that surrounds it, one must realize, as mentioned, that the new world of digital music is a dream for the consumer and a grey haze of uncertainty for the artist and the machine that profits from him.
The question of copyright protection has always been a point of contention in the fashion world. The first, most documented legal case in this matter was presented in the 1946 by two designers, Maurice Rentner and Leon Bendel. Mr Rentner not only felt that the lack of protection would put designers under such pressure that the industry would be threatened, but he also insisted that the many subsequent jobs in the US would be lost, resulting in a huge increase in unemployment. A clear and logical argument, it was supported by many, especially his employees. Conversely, Mr. Bendel argued that design copying was not only inevitable, that it was essential. He said a continued lack of protection would spur designers to be constantly producing new material, thus prompting new trends, more production, more sales. A few years later, as Rentner’s pleas to adapt higher protection laws (as in Europe) continued to go unanswered, the industry grew to the point of flourishing. In that time of such limited social communication and interaction, it now seems quite a feat.
And yet, the debate lives on. As Stephen Kolb, executive director of the CFDA said recently, “Original design ideas are as much intellectual property to a designer as
lyrics and notes are to a musician. Without protection the very foundation of their business is at risk.” [2]
In 2006, the middle of the digital music boom, the U.S. saw the introduction of the Fashion Piracy Act. The bill proposed a three-year period of protection for registered, original fashion designs. Despite support from several well-known designers, the bill met with resistance on Capitol Hill, and is still in limbo. More recently, the Innovative Design Protection and Piracy Protection Act (proposed August 5, 2010), presented by Senator Schumer, is a much leaner bill, and may have a chance of being passed. It is backed by many, including the Council of Fashion Designers of America. The CFDA council is currently headed by Diane von Furstenberg, a long time, highly visible advocate for copyright protection in the U.S. This bill has an even more artistic approach: “Unlike earlier proposals, Mr. Schumer’s bill contains no requirement that copyrighted designs be registered so that retailers and other designers are put on notice.”[3]
Much like a musician can create, record and release, so could a designer do the same in a short period of time. It has been reported that Mr. Schumer will re-introduce this legislation in 2013. Innovation is also a priority in this document: Among other things, there is now a distinction between designs influenced by trends and those that are knockoffs. Senator Scafaldi, a proponent of the propsed legislation, testified that a properly worded bill would "both promote innovation and preserve the development of trends."[4] The question here is that of art: protecting fashion, whilst mostly utilitarian, is important because it also protects the creator’s financial gain and a companies livelihood .
In the comparison to other art forms, namely music, we must remember that we are not talking about direct piracy. The comparison is better likened to that of inspiration, design, and imitation. For example:
At Sonyia Rykel, a ‘nameless’ staff member’s job was to gather vintage pieces for inspiration for each season. In an article written by a former co-worker on her fashion blog, she explains that after closer examination, many of his presented pieces weren’t vintage at all, but, “the work of unknown young designers trying to break into the industry. “[5]
In any country, this is clearly an unethical breach of the governing doctrine of respect that must be applied to all disciplines. Would a young designer in New York have the opportunity to claim this idea as her own when she sees it on the racks at Barney’s a few months later? No. What about Paris? It would not be much different. In the fashion capital of France, copyright laws protect fashion designs, and the “Design Act […] extends patent-like protection to fashion”. [6] Those who lobby for this kind of legislation are only mimicking the cries of Mr. Rentner so long ago. However, it is common knowledge that the long standing copyright laws of France have a very low novelty standard, which makes them easy to attain, and the smaller cases very rarely go to court. Additionally, the ‘lawyer happy’ culture of the states does not exist there, and plaintiff lawyers are not as common.
So even as Ms. Von Furstenberg insists the European way is superior, and tries to get the IDPPPA passed in this new Obama administration, it could be argued that any new take on increased protection would be fruitless. Besides, what would happen when suddenly all designers were entitled to protecting their intellectual property, new and old? The offices could never handle such an inundation…where is the line drawn?
This can be directly applied to the music industry, as it takes years for artists to gain any sort of recognition. To be copied through imitation or outright piracy would be devastating to a developing musician on the brink of defining his sound and presenting it to the world. Ethical issues such as this cannot be regulated by a bill, and even if so, the damage would already be done in the rampant world of music sharing.
Regarding attribution and sharing, many musicians and artists are working on a solution, and have been since the 1970’s. Creative Commons is such a viable option, and is used and respected by many. For true music fans, the respect issue is usually there. As Tom Ford, the genius behind Gucci famously said, “the counterfeit customer is not our customer.” Even with a complete lack of copyright, luxury labels will continue to be lucrative, as their client never changes. Such is the case with music. The consumer will always remain;however, it has become thatthe method of consumption sometimes generates no revenue. The point of musical discovery is now to profit from it after its discovery. A ‘sound’ now is tied into a genre; a genre is part of a “lifestyle”; and this lifestyle is often a choice that defines you as a person. Much like a man wearing Gucci loafers. If the original sound is allowed to be shared without the risk of piracy, will the original artist more freely share it? It has become that the goal of music creation is more brand recognition that actual sales.
In 1946, the survival of the industry depended on one thing alone: the sales of physical garments, regardless of the reason or intention of the customer. In this age of free culture, we must adapt or outright change this business model to suit our needs. If trends determine sales, an artist’s identity must be the driving force behind the strengthening of his brand. The lack of legal protection forces the fashion industry to say that people are going to steal, share, remix and replicate our product regardless, how do we build a business model for the future of digital music that not only copes with this fact, but benefits from it?
Regardless of the outcomes of current and future legislation in the U.S., the music business will have no choice but to embrace the free culture movement. Methods of transmission are changing at different rates and for different reasons. But the music business has something to learn from the fashion industry. Instead of reacting to the current challenges regarding IP Law, both creative industries must adapt to this new reality. Only then will there be more progress than restriction.
Creativity has always been the key; and regardless of the law, a genius will always find a way. Moreover, if innovation is the key to worldwide success, one could argue that you would not need to keep your ideas to yourself at all. On his introduction of Bebop to the world, Charlie Parker said, “We wanted a music that they [white band leaders] couldn’t play.” [7] Most importantly, as was proven in the happenings of1946, perhaps the industry will not only survive, but financially thrive through an evolved and lasting business model.
[1]Lawrence Liang, "Guide to open content licenses" v.1.2 Piet Zwart Institute, 2010
[2]Morgan Lewis, “Design Protection Bill Sent On for Senate Vote”. JD Supra, published on September 28, 2012
[3]Kal Raustiala, “Why Imitation Is the Sincerest Form of Fashion“. The New York Times, Published: August 12, 2010
[4]Design Piracy Prohibition Act: Hearing on H.R. 5055 Before the Subcomm. on Courts, the Internet and Intellectual Prop. of the H. Comm. on the Judiciary, 109th Cong. July 27, 2008
[5] ‘Alexandra’ “Fashion 101: Copyright Laws in Fashion Searching for Style”. Fashion Living Blog, June 7, 2010
[6]”Gioja Dilberto, “Vive le Knockoff”, L.A.Times. October 10, 2007
[7]Chris Raschka, “Charlie Parker Played Bebop”. Calendar Publishers, April 30, 2011