Fledge Post 256, wherein I discuss nonobviousness, S-C-P Theory, battle my inner Mugatus and call out a leading economist

...not to mention quite a bit of digression.

But you brought it up, so here we go

Wait: First, the Disclaimers.

Disclaimer One: I am a Redondo Beach hausfrau and not an expert in intellectual property law. By no stretch of the imagination am I an expert in intellectual property law. If you want to quote me, quote the WHOLE darn thing. Context is king.
Disclaimer Two: It's pretty hypocritical for me to lift that image up there belonging to Paramount Pictures without permission. My uses are purely journalist and my use sorta falls under fair use. Sorta.

Image © 2001 Paramount Pictures. Are we good with that?

Now, here we go.

Recently, I publicly requested that sale of finished Farbenmix and studioTANTRUM/fledge designs mention attribution. And that has got some of you all talking. I've read the posts.

• Some posts say I am fishing for gratitude.

• Some posts mention that they paid for the pattern, so they may do with it as they will.

• Some posts mention that designing is the fabric and embellishment and not the pattern, so why mention the dress design?

• Some posts mention that sewing patterns just repeat designs that have been around since time immemorial, so why would somebody attribute it to just one designer?

There is truth in all of those points:

Gratitude: It could very well be that I'm going the way of Mugatu ("I invented the piano key necktie! I invented it!": Just rent Zoolander). I’m sure I’m heading that way. But for now, really, in my heart of hearts, I do what I do for my little girl. When I feel her gratitude, my heart sings. Her gratitude is the only gratitude I want or seek. I don't make sewing patterns to get anyone else's gratitude.

Paying for the pattern buys you the right to do with it as you will: Absolutely: You are in no way shape or form required to make the designs in the pattern as I would like you to. You may take ZUMA and use it to make a pair of curtains. You can sew LAGUNA from green shag carpeting. You can take the pattern sheet and make giant origami cranes. Or line a bird cage. It's yours. The pattern sheet is yours. The idea contained within, however, is not. It is mostly mine. But ideas are not protected. Not legally. Not quite. Hold that thought.

Designing is really about fabric choice: A garment certainly isn't a garment without the fabric. A major design decision is the fabric and embellishing choices. No argument there. I don't happen to think fabric and embellishment are the only things in design. But I would think that way, wouldn't I?

Sewing patterns contain ideas that have come and gone and come back again: Most sewing patterns are the same old same old. We'll never know who gathered that first strip of fabric and stitched it to another, and then another and came up with the tiered skirt. The t-shirt began life as an undergarment, maybe in Great Britain, maybe in California, maybe in ancient Egypt. While blue cotton twill work pants with brass rivets at the pockets are the contribution of a certain German immigrant Herr Strauß, there is no source documentation for five-pocket, button fly work pant design we call "jeans". (There's also no source documentation on the piano key necktie. So sad. So very sad.) We might take a moment of silence to thank these unknown tailors and seamstresses for their contributions, however, as it is, their work, their ideas now belong to everybody. It is in the public domain and anyone may do with these common design ideas what they will. Make a pattern? Sure. It helps save time drafting all those pieces. Claim intellectual property ownership on a t-shirt or tiered skirt? Good luck with that.

So, we are all on the same page. I agree with all those points. 

Now: What is Nancy's problem? Why should she care if a seller on Ebay or Etsy or elsewhere attribute the garment designer? The girl must have some real self-esteem issues.

Actually, the answer is more complex than my self-esteem issues. It really has nothing to do with you, the Ebay or Etsy seller, and me. It is not personal. It's macroeconomic. It’s legal. It stinks. I'd prefer not to have to ask you to attribute the designs. Really. Really. I wish the market structure was with me. (I'll get to that--a bunch of Economics 101 will be thrown in for good measure).

Well, you brought it up. Here goes. And there will be a quiz.

But before I do, let me qualify the designs for which I ask attribution. The ones deserving attribution are the ones you just never saw before. While I recognize the taper of the ZOE raglan shirt as something special, it is really just another raglan shirt. A better raglan shirt, but a raglan shirt nonetheless. So I want to say now that the tiered skirts and standard shirt patterns are not my concern. Let me call these "obvious" (that's patent attorney talk) and that they are in the "public domain". Those patterns are offered by Farbenmix, because they are better basic patterns for public domain ideas. That's all.

Now there are two other kinds of designs in my mind: Let me call them novel ("same, but different") and nonobvious ("Gosh, that's different, really different"). I'll try to define them here:

Novel/"Same but different", to me, would be a garment based on a common, public domain design, but given enough significant stylistic elements to make it different enough from every other garment of that type. An example in my mind would be the jumper dress VIDA. It's an A-line dress with shoulder straps. But VIDA is an A-line dress with shoulder straps with vertical and horizontal piecing that makes it different from every other A-line dress with shoulder straps. Significantly different. Recognizably different. CARA, with it's bodice solution and highly recognizable hemline is another good example. I'd argue that most of the Farbenmix designs fall in this category. JULE is a sweatshirt, sure, but ever seen a sweatshirt like that before?

Nonobviousness/"Gosh, that's different, really different" is where I like to swim. I have a couple of designs that I can confidently and in good conscience say, "never been done before I did them." There are significant, substantial elements in most every last one of my designs that I can confidently say, "never been done before I did it that way". By significant and substantial, I don't mean adding a ruffle. I mean, I messed around and made the TUOLUMNE hem fall a new way because of that idea for those pieces. I messed around with bias-cut flounces and found the HERMOSA sleeve. The TUOLUMNE hemline is not the first scalloped hemline ever, but it's the first time it was scalloped like that. The HERMOSA sleeve is not the first bell sleeve ever, but it is the first time a bell sleeve was constructed like that. (Can I get an "amen"?).

Are we clear? "Obvious", "Novel" and "Nonobvious": Think ZOË, CARA and SOLANA, respectively. Atribution? No, yes, yes, respectively.

Okay-dokey. What has happened is that some of these "same but different" (novel) and "gosh, that's different, really different" (nonobvious) ideas have proven popular. So, that's good, right? It sells patterns, right? And that's good for me, right? Sure. It is good. I'm glad to sell the patterns. But I never intended to give up the idea. When you buy the pattern, you don't buy the idea. You bought instructions on how to replicate a finished example of the idea. But the idea is still my idea. My idea, that is, until it dissolves away due to lack of attribution. If the general public does not realize the idea is my idea, it might as well have never been my idea. And I am a control freak. Add "control freak" under "egomaniac". I want to maintain control, so that nothing happens to the designs I never intended. I don't want Hustler Clothing to make LAGUNA skirts for adults. Has that happened? No. Could it? I don't know. I just don't want it to. That would be bad for my designs. Add "paranoid" to the list.

So why do I need you to attribute, to protect what is mine? Isn't that my responsibility? Why don't I do whatever I need to do to put my ideas under lock and key instead of getting all up into your business? It's just not that easy. Not in fashion design.

There are laws surrounding the protection of novel ideas for what are useful items. Clothing is a useful item. That's why copyright doesn't apply. Copyright applies to artistic and literary works only. The minute an item can be used for something other than pure artistic function, the minute that sculpture can be sat upon as a stool, that's the minute copyright no longer applies. Although a bill was before the House of Represenatitives, H.R. 5055, which proposed extending copyright to fashion design, it never got out of committee. That leaves us with trademarks and patents for protecting intellectual property regarding useful articles in the U.S. 

Patent is easy to understand. I think you can pretty much understand what it means if something is patented. I've applied for patents on a few designs. But that is expensive and time-consuming, so I only apply for patents on the designs I am confident are really nonobvious. And even for the really, really nonobvious designs, a patent isn't so easy to get. 

I'd like fashion designs to be extended the same intellectual property rights extended to every other creative and inventive endeavor. Did you know it is easier for me to take your fingernail clipping, discern your DNA and patent your personal genetic material, the unique combination of your mom and dad that is YOU, than it is for me to patent TUOLUMNE? Plants, sports shoes, furniture: Those things are easy to protect. Fashion design, in the United States, not so much. I'd much prefer it if clothing design were regulated much the way music is. Robert Hazard passed away recently. Who's that? Who cares! Girls just wanna have fun!

Now there is trademark. A trademark can be a logo, like three stripes on the side of a shoe. It can be a name used in trade, like a brand. "Fledge" is a registered trademark for the category of goods relating to clothing. I don't have the trademark "Fledge" registered for other categories. As long as the examining attorneys can't think of reason there would be confusion, you may produce tire chains or toothpaste and use the trade name "Fledge". Logos and brand names as trademarks is pretty well understood, I think. There is a cousin of trademark, and that is trade dress. Trade dress applies to the distinguishing look of a thing that makes that thing immediately identifiable with the brand, like the shape of a Coca-Cola bottle. Curiously, trade dress applies very rarely to "dresses" in the United States. But it will on some and I'm hitching part of my wagon to § 1125(a) of the Lanham Act. Not as sexy as copyright, but it's what I have to work with in the United States.

Conversely, in Europe, the Hague System does protect the look of a product. The attorneys working for Hermés spend a lot of time making sure their handbags are covered by the Hague System. And that is part of the reason you are on that one-year waiting list for your Kelly bag. And since I have interests in Europe, my designs are produced and distributed in Europe, I'm hitching part of my wagon to that Hague System.

You're still reading? Hague System? Lanham Act? It only gets better! I'm heading straight into economic theory according to Bains and Mason.

An important concept is Structure-Conduct-Performance. Just say "SCP" at cocktail parties. Let me begin with an example: We have often heard of a thing called "European" design. I lived in Europe for, gosh, some eight years. And there is something about the stuff designed and manufactured in Europe. There is just so much cool European stuff. Cool office accessories. Cool bathroom fixtures. Cool kitchen gadgets. Cool lamps. All sold, for example, in really cool retail venues, like Stilwerk. So cool. Way cooler than their American counterparts. Really: I live in Los Angeles. Los. Angeles. 10 million image-obsessed people on one fleck of the Earth. And Los Angeles does not have even a fraction of the way cool stuff you find little old Hamburg, Germany. (Can I quantify "way cool"? Sure: Something is way cool, because I say so). But I diverge. So let us ponder about the other side of the pond: What is it about this bit of geography between the Atlantic and the Ural Moutains, the Arctic Ocean and the Mediterranean Sea? What is it that makes the people there better in the areas of industrial and clothing design? Is it the Roman ruins? The cobblestones? The Mistral winds? Universal health care? Topless beaches? Middle-aged men with beer guts in Speedos? Socks with sandals? Bike paths? Bidets? French fries with mayonnaise eaten with forks? What?

What?

When other realms of creativity in Europe, such as television and cinema, with rare exception, stink, big time, why is European industrial and clothing design out of this world? Maybe it is the beer gut/Speedos (I truly hope not), but maybe it is things like Hague System for international registration of industrial design. My argument is that the Structure of a market that protects design of practical items Creates better and newer and more innovative things, making those firms and countries Perform better. S-C-P. (Another "amen"?)

So why can't America be more like Europe? The open air markets. The public transportation. The bistros. The pedestrian zones. The Hague System. So much to love. On this side of the Atlantic, I see as evidence right in front of my eyes this gorgeous Mac PowerBook, that even some Americans can do some pretty good design work.

And yet, in the United States, brand is king. If you are a fashion house in the United States, you spend your time and energy developing the brand. The new ideas in design work can be created in house, but they can also be--oopsie!-- "borrowed" from smaller, unknown designers. Perfectly allowed. Is this ethical? Oh please. This is America. Ethics? How quaint. Fashion houses are supposed to be able to afford to party with rock stars and be ethical? Like that's going to work.

In an alternative universe, where design is protected, perhaps design would trump brand.

The courts do not do much to stop "knock offs". While FBI guys in flack jackets will bust into a warehouse in Riverside because there are CCs on handbags not manufactured by Chanel--because that is Federal trademark infringement--if you replicate every last stitch of a brand new Chanel suit that just strutted down the runway, but if you leave off that trademarked CC, the FBI won't bust down your door. Oh, Chanel will sue you. And they have probably more money than you to keep that lawsuit going, and they may drag your butt to Brussels as part of that whole Hague System thing, but ultimately there is nothing in the U.S. to prevent knocking off that "Chanel" suit.

Part of the thinking is, is that it is so complicated to copy a fashion design, that by the time someone brought knock offs to the store shelf, the fashion would be over. Six months was the once-upon-a-time rule of thumb between design and production. No longer.

Zara, a Spanish clothing retailer, is the fastest growing clothing retailer in the world. It puts out an astonishing 10,000 new designs out each year. All year, throughout the year. Broken down, if we say there are 250 working days a year, that is 40 new things in the stores every single business day.

Zara publicly says it can bring a design to its store shelves in two weeks. I've heard they can do it in less. Heck, Zara designers are programming the cutters in the factories while Heidi Klum is still removing eyeliner from the runway show. Be careful what you wear into a Zara store: If that trendy new combination catches the attention of the store manager, he'll email an image from the surveillance cameras to the Zara designers. You think I'm kidding? No, it's true. Zara's business model is this: Zara doesn't advertise. They rely on fashion houses and other designers to advertise the new styles for them. If Muccia Prada says Chantilly lace trench coats are the thing, Zara won't argue with that. Zara puts their money in IT to replicate very closely some fine Chantilly lace trench coats. This is a paradigm change in production technology that has changed the business environment. Interestingly, then, ZARA does, in fact, place design above brand, nevermind that the design is the product of somebody else's hard work and creativity. Zara can usually get the design in their 1,000+ high street stores faster than Prada can to it's Rodeo Drive location. Who then, in the consumer's mind, is the design originator?

Another part of the thinking goes like this: There is an argument that goes that because fashions are not copyrighted, and knock offs are expected, that the industry is forced to constantly innovate, which creates demand, jobs, and wealth. Consumers enjoy a greater variety of fashion at much lower prices. Restricting access to design would limit consumer choice (ergo, that darn one-year Kelly bag waiting list).

Berkely economist Hal Varian agrees with this argument (14,900 entries on Google Scholar, that's amazing). (Digression warning) I actually met Hal Varian in his Berkely office some 12 or so years ago. Maybe he remembers me: I was horribly, but nonetheless fashionably overdressed. He, on the other hand, was not very fashionably dressed. Which speaks volumes on this topic. But probably only to me. not to economists, so I'll get to some more of the dull science in a second.

So let's think about a world without copyright: Mozart did not have copyright. All his works were one-offs. Commissioned, sold, done. Maybe, if Mozart enjoyed the benefits of copyright, he would have stopped working after about concerto K. 216, retired to the Adriatic coast with Constanze and would never have gotten around to The Magic Flute to pay the bills. Possible.

At any rate, Mozart died a pauper and was dumped in a common grave with no attendees. But the world does now have The Symphony in G Minor. So it's all good.

Still, in my view, this argument is kind of like saying, let me steal all the money in your bank account, that way you will be motivated to work harder.

Dr. Varian goes on to make the argument that academics works very well without anyone receiving royalties for their ideas, so this should work just fine for fashion design. Let's look at the academics analogy: One idea in research is built upon another and another and thus scientific progress is achieved.

(Perhaps Dr. Varian would make that argument, because most, if not all, of his esteemed academic career is founded on the publishing of highly regarded economics textbooks, textbooks, it should be said, which are the compilation of ideas and concepts in economics not belonging to Dr. Varian. Dr. Varian explains Mason and Bains, is paid royalty from his copyrighted textbook sales, but nothing goes to the estates of Mason and Bains. Go figure.)

Academic research in practice is pure and altruistic toward the greater good of mankind? Sorta. Whenever, however, an academic scientific breakthrough is made in pharmaceuticals or computer science or plastics or genetic seed engineering or about anything else, boy, you better stand back as the universities and chair-sponsoring firms stampede to get their claim to the patent. That could leave a mark! The researchers making the discovery might get bigger offices. And tenure. And--oh, yeah--lots and lots of respect and admiration from the academic community. And those kick-ass search results on Google Scholar. Which is fine for academics, because they get off on that stuff (until, of course, they realize there's not enough money in lots and lots of respect and admiration for a new addition to the house and European vacations, so they take jobs in industry, like being Google's Chief Economist. Right, Dr. Varian?). Innovative fashion designers don't get anything like tenure or lots and lots of respect and admiration from an esteemed community. We party with rock stars and hang out in secluded yurts with recovering A-list celebrities. Totally. Right after the vacuuming and the Quicken and laundry folding and the sandwich making and the weed pulling and the grocery shopping and the inventory taking, dude, I am SO hangin' at Owen Wilson's. Malibu, baby!

But Dr. Varian and others do make a convincing academic argument to keep copyright protection away from fashion design. So why, then, extend any intellectual property protection to anyone for anything? Pharmaceutical companies only seem to begin research on new drugs as the patent on their existing drugs begins to wind down (absolutely true: When I worked in logistics, I was specifically called in to look for cost savings in logistics for a major pharmaceutical firm, because the patent on a certain popular antidepressant was about to expire and the firm needed to maintain profitability). Surely, it would be in the public interest to have more medicines available to more people at lower costs. Medicines are more important than clothes, surely, so why protect that intellectual property? And automakers? Shoot, except for a few bells and whistles and a few computer chips here and there, today's automobiles are essentially the same as they were thirty years ago. Those auto maker guys need a good swift kick in the butt to innovate. Wouldn't drug companies and auto makers be innovating more rapidly and more often, if they were forced to work harder for those years between patents?

Probably, I could argue, there has been so little innovation in sewing patterns because clothing design is not protected. Why bother? There is little incentive to innovate. The state of the fashion industry is a result of the current structure. I've often wondered why a Redondo Beach hausfrau came up with LAGUNA. Well, there is that freak-of-nature creative genius thing about me. Still, surely somebody else could have created HERMOSA. Or maybe somebody did. But they aren't stupid like me. They took the idea and never let it see the light of day. I would argue that there is very little innovation in fashion because of the Structure of the market which does little to protect design. Furthermore, I will argue, that today's fashion industry invests not in design innovation, but in the thing it can protect, the trademarks. Be the t-shirt from Tom Ford, Old Navy, Sears or Target, a t-shirt by any other name does not sell as sweet. The logo on the front is what determines the price on the tag. We have no idea of knowing what the fashion industry would look like if the structure were different. Perhaps intellectual property protection would promote innovation and therefore demand, jobs and wealth in that way. What sayeth Dr. Varian to that?

So, what is my point? My point is, protecting my kind of my creative work requires surfing this moving target (bad mixed metaphor, but I'm tired of writing this, so it stays). If I were a musician or a sculptor or a screenplay writer or a graphic designer, it would be much easier. There is no real need for a fabric designer to ask you to attribute the fabric to her. Fabric designs enjoy copyright protection, a thin protection (and that is why there are so many similar fabric designs), but it is protection nonetheless. Fabric designers understand, that if they see a graphic design they like, they need to license the graphic designs of others to make their fabrics. Clothing designs do not enjoy copyright protection. What I know in my heart to be "gosh, that is different, really different" designs, designs that started out as my twisted greasy napkin, was then translated into pieces, was sent to the test sewists for days and days of work and revision, for which my collaborator, Sabine Pollehn, and I risked investment and embarrassment (because different is different), is being mass produced. And not by me. So, did these individuals spontaneously come up with the very same ideas I or Sabine did a year or more ago? It's possible. But not probable. It is likely they saw an Ebay auction or an Etsy sale. Or several. Or hundreds. Or thousands. And when something shows up thousands of times and it is not attributed, who's to say whose idea it was? Or more specifically, is?

You think you may have bought some software on your computer. Technically, no. You bought the right to use the software. There's that little screen that pops up and ask you if you agree with the terms. The reason that screen pops up, is because software is also just made up of a bunch of free stuff. You can no more copyright a computer language than you can the English language. So the software makers hired some lawyers to write some pretty air-tight terms that you need to agree to before using their product. I put some terms on the pattern sheet. There is the law, and then there is contract law between you and me. We can make up almost any contract between us we want. My deal is this: Because it is really hard to protect these designs otherwise, because I am relying on § 1125(a), I have to ask you to attribute.

If you don't agree, perhaps another design will do and ours are not for you. If you do agree, even a little bit, I need you to give attribution. I don't ask for licensing fees. Just a little attribution. You can even write, "I think Nancy Langdon is an paranoid, egomaniacal control-freak. But this is her design. So there." Maybe I'm asking too much. But it's all I can do. It's the only option I have, if I want to maintain ownership. This little flimsy § 1125(a). And a bit of the Hague System, because of my business interests in Europe. That's all I have.

If I could dream a little, I'd like to imagine a world where fashion design is regulated a bit like music. In music, somebody writes lyrics, somebody composes the tune, different people play the song in different ways to different audiences.

When you buy sheet music the price includes royalties. The royalties go the rights holders of the lyrics and the music. The publisher pays those. When you play that song at home on your piano and basically the song is heard by you, your husband and kids, maybe a few visiting friends and the goldfish, well, that falls under fair use and no performance royalties are paid. Now, if you take your guitar and play that song during open mike night at the local joint, that local joint is required to pay blanket royalties to a few different performing rights societies. Those organizations somehow know how to get some of that money back to the rights holders for those songs. Now, if a recording of you "Live at Open Mike Night" is pressed onto CDs or uploaded to iTunes, well, most songs have blanket contract agreements on them, which requires iTunes to send royalties to go back to the rights holders. Those rights holders may not appreciate your version showing up on iTunes and they may tell you to cease-and-desist, if they think your performance will hurt the song, their property. But, at any rate, blanket agreements in music is how we get to enjoy all the different cover versions of songs. If your performance is picked up by Clear Channel and suddenly on the regular loop right after some Justin Timberlake whatever, then a bunch more royalties are paid. And now we are partying like rock stars!

Now take the above paragraph and find/replace "lyrics" with "dress designer" and "performer" with "seamstress", well, imagine how we all could benefit. A song isn’t a hit until it is performed by the right performer. A design isn’t a hit until the right sewist puts it all together.

Do you like a song because of the lyrics? Or the melody? Or the composition? What about your favorite dress? Do you like it just because of the fabric? Or do you only like the cut, fit, length and style? Or is it the one decorative detail that makes this one dress stand out above the others? Can you like a song and dislike the lyrics? Can you like a song, but dislike a certain artist's performance?

I think I'm done with this topic. There are more important things in the world. Like frogs. Frogs are more important. A lot more important. A third of all frogs are endangered. And I have a little idea I’d like to work on to help the frogs. So let me get on to more important work. Just give me that bit of attribution. I’ll get to work on more designs and something for the frogs.

In summary: You attribute, I'll save the frogs. Got it?
And, as I alluded, Dr. Varian left Berkely to go to Google, an enterprise which benefits greatly from all things free. Including this blog. So that's my free content for today.