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Lunch break

I just finished an article on Chuck Schumer's effort to add copyright protection to the fashion industry, and I'll be linking to it a bit later today. The underlying issue here is interesting: We intuitively think that allowing people to copy stuff will destroy the impetus for others to create stuff. But in some industries, like fashion, it's just not true. And that makes this a really good way to think about the benefits and drawbacks of copyright law. My piece is coming, but for now, here's a TED talk on the same subject.

By Ezra Klein  |  August 20, 2010; 12:27 PM ET
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Copyright law could use a radical restructuring.

That anything other than direct plagiarism of passages larger than 1/3rd of the work is protected by copyright is crazy. Character and brand trademarking is understandable--you don't want folks to dilute the brand. But being able to copyright a perfume scent (well, it's really close, so it's still a violation) and fashions and, say, the design of cookware or clothes hampers or whatever . . . it's just an excuse to make lawyers richer than they already are.

I made a red shirt. I copyrighted it. Now all red shirts belong to me.

Posted by: Kevin_Willis | August 20, 2010 12:48 PM | Report abuse

Her presentation was very good on how copying adds to creativity. Most telling is the graphic on the relative sales of things without and with copyright protection. Of course, the things without (recipes and food design, clothing) versus those with (films, books, music) is that the former are, as she said, utilitarian things that can be elevated into art and the latter are . . . just art.

Her case is very persuasive and strongly suggests that less is more and Schumer's effort is misguided.

Posted by: Mimikatz | August 20, 2010 1:02 PM | Report abuse

Copyright law is utterly broken.

The social contract that the Constitution originally created was that creators would get the protection of the state for the exclusive distribution of their works and IN EXCHANGE, those works would go into the public domain for everyone to enjoy after a *limited period of time*. It's a two way street, each side gets something.

However, the creative industries, by indefinitely extending that "limited period", have failed to uphold their end of the social contract. Thus, I morally see no reason to automatically respect their distribution rights.

The creative energy of the human race did just find for thousands of years before copyright law and it'll do just fine even if it's completely repealed.

Posted by: lol-lol | August 20, 2010 1:17 PM | Report abuse

I make my living creatively, but I violently reject the general copyright-strengthening argument, "If you love art, the artist should get paid."

NO. Artists don't do it for the money. Show me the artist who needs better copyright protection, and I will show you a still better artist who starved and made great art anyway.

Don't get me wrong, I want people to support the arts. But if you have created something people really want to circulate and repeat because of its ARTISTIC merit, this is a triumph, and money does not matter.

ARTISTIC MERIT, in fact, should DISQUALIFY something from copyright protection. Once I have written a poem on my countrymen's lips, it is obscene for the law to stop them from repeating it, putting it on T-shirts, whatever.

If you want copyright protection, you should have to show that your work has NO ARTISTIC MERIT. If it is nothing but a mercenary business concern, then culture will not be harmed by our protecting your proprietary interest in it, and I suppose capitalism requires us to in fact.

To some degree, the law recognizes my point. A scholar can quote and criticize a poem by fair use. (And yet, publishers covering their posteriors will often seek permissions for this fair use--an evil thing.) A musician can to some degree get away with creative appropriations. But if I try to get rich by selling fake Playboys copied from the real Playboys, I am a crook. This is how it should be, but with the distinction between artistically worthless and valuable made even more sharply.

Posted by: neversaylie | August 20, 2010 2:03 PM | Report abuse

You might also look at what law professors have to say about this; there's a pretty vibrant literature. A few recent examples:

From Susan Scafidi, the leading proponent of Schumer's bill:

A more skeptical take from Chris Sprigman and Kal Raustiala:

A more recent article from Jeannie Suk and Scott Hemphill that draws on the tension between creative and status aspects of fashion protection:

And an important analysis of the use of IP as sumptuary regulation from Barton Beebe:

Posted by: jnsheff | August 20, 2010 2:47 PM | Report abuse

Wow, that graph showing the sales of no IP protection goods compared to those of goods with IP protection really sends the message home.

Posted by: WUrquhart1984 | August 20, 2010 4:50 PM | Report abuse

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