Fashion and intellectual property

by Rob Horning

9 June 2011


Some parting thoughts on fast fashion and social media: A section that was cut from that essay I wrote for n+1 about fast fashion had to do with “open innovation,” or the laissez-faire attitude toward design piracy advocated by some consultants. Here’s how my essay read at one point:

By skirting the borderlines of stylistic piracy, Forever 21 exemplifies so-called open innovation, cherished by consultants who argue that an enhanced and highly exploitable creativity is unleashed under a less rigorous intellectual-property regime. A 2005 tract from the Norman Lear Center (pdf), a think tank, approvingly described how “the past is constantly being plundered for ‘new’ ideas. Stylistic elements are routinely appropriated from the most unlikely places—Polynesian islands, urban street corners, stock-car races, bowling alleys—and transformed into new trends. In fashion, nearly every design element is available to anyone for the taking. Any fashion design, one might say, is ‘ready to share.’ ”
Of course, share is the operative word for another burgeoning business. Facebook and other social-media companies have a similarly parasitic business model that depends on appropriating freely shared material and repurposing it as data for marketers. Just as Forever 21 pushes the boundaries of intellectual property, Facebook continually oversteps established norms of privacy, opting users into data-divulging mechanisms by default and backpedalling only when confronted with public outcry.

There are a lot of quotable passages from that “Ready to Share” paper about fostering an “ecology of creativity” and fomenting a “churning tide of innovation” that leads to hyperefficiency and so on, all of which double as useful rationalizations of enclosed communication channels like Facebook. My title for the essay was more or less inspired by this line: “We believe that the styles of creative bricolage exemplified by fashion and new digital environments embody a new grand narrative for creativity, born of ancient tradition.” I, on the other hand, believe that the new “grand narrative for creativity” is the current ideological alibi for subsuming everyday life and sociality to capital. Social media allege to enable creativity when they are just appropriating it.

I was reminded of this lost material by this post by GMU economics Phd candidate Eli Dourado, who refers to IP restrictions in fashion as a “tragedy of the anticommons,” following legal scholar Michael Heller (jstor). This is what happens when “multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use.” Dourado points out that fashion “is entirely about signaling. Inframarginally, signaling generates information and serves a useful social function, but at the margin, it’s better if fewer resources go into signaling. For instance, if you impose a tax on the signal that causes everyone to signal half as much, information is preserved and the status of every individual remains the same, but fewer resources are consumed.” In other words (as I understand it), the fashion industry seeks to promote inefficiency in signaling, with lots of redundancy and confusion and overdetermination and interpretation problems, generating “information” that no longer serves a “useful social function” but instead drains resources from other uses and binds it to endless acts of decoding. The solution, Dourado suggests, is to stop rewarding fashion innovation by halting IP protection in the industry. I don’t think that will work, as the utter lack of intellectual property rights has done nothing to stem the flow of “sharing” in social networks, though admittedly sharers don’t perceive their self-fashioning explicitly as innovation (yet).

Also cut from my n+1 essay was a bunch of material from sociologist Gilles Lipovetsky’s book The Empire of Fashion, which I think lays the groundwork for an argument that connects the dissemination of fashion with emergent neoliberal subjectivity. He basically argues that fashion accustoms us to accept constant change as freedom of expression rather than insecurity, as providing opportunities for creativity rather than conformism. Of course, it is neither one or the other of these things, but both simultaneously. One of capitalism’s great psychological coups is that it allows us to be creative conformists.

Anyway, this is what I originally had drawing on Lipovetsky:

“The consciousness of being an individual with a particular destiny, the will to express a unique identity, the cultural celebration of personal identity were ‘productive forces,’ the very driving forces of the mutability of fashion,” Lipovetsky argues in The Empire of Fashion. Tracing the development of couture, Lipovetsky claims that “what formerly appeared as signs of class and social hierarchy had a tendency to become increasingly, although not exclusively, psychological signs, expressions of a soul or personality.” This allowed fashion to corner the market on giving ordinary people opportunities for, in the words of haute couturier Marc Bohan, “the renewal of their psychological makeup.” The promised transformational potential makes fashion, as Lipovetsky notes, “the first major mechanism for the consistent social production of personality”—that is, our first reflexive sense of self, set in terms of those constantly shifting social meanings, an identity not foisted upon us by birth and tradition but one for which we must hold ourselves personally responsible.
As fashion strays from its role in expressing established hierarchies, it becomes a form of institutionalized insecurity, laundered by the personal expression and individualism it appears to authorize. It yokes us all to the zeitgeist, eradicating the orienting effects of tradition and leaving us all more vulnerable to existential doubt. What Lipovetsky tends to call a “right to personalization” is at once also an ontological burden, the emergence of a permanent identity crisis.
If we don’t have the right to a self simply by virtue of existing, then how do we justify our conviction that we are somebody? How do we prove it to the world? Lipovetsky argues that people respond to fashion’s destabilization of the self by embracing fashion more thoroughly. Having “generalized the spirit of curiosity, democratized tastes and the passion for novelty at all levels of existence and in all social ranks,” he argues, “the fashion economy has engendered a social agent in its own image: the fashion person who has no deep attachments, a mobile individual with a fluctuating personality and tastes.”
Lipovetsky’s “fashion person” is a precursor for the social-media enabled personal brand. A cursory glance at Facebook reveals all sorts of “fashion people” harbored there. We have to watch ourselves become ourselves in order to be ourselves, over and over again. This futile process crystallizes in the irrepressible ideal of youth, the time when all that reflexivity seemed like second nature, was authenticity itself. As Lipovetsky notes: “The exaltation of the youthful look is ... inseparable from the modern democratic individualist age whose logic it carries to its narcissistic conclusion. All individuals are in fact urged to work on their own personal images, to adopt, to keep fit, to recycle themselves. The cult of youth and the cult of the body go hand in hand; they require the same constant self-scrutiny, the same narcissistic self-surveillance, the same need for information, and the same adaptation to novelty.”

For me, that is a pretty succinct description of what social media are for, preserving the illusion of youth in a space that doesn’t countenance the past or the future but only the now.

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