Research Reflections: Conversations with Practitioners: Creative Enterprise in an Age of Digital Borrowing and Appropriation

How should rights holders in fashion, music, art and film use copyright now, where cultures of digital borrowing, piracy, appropriation and remix are rife?  This piece discusses some views and strategies I have been accessing from established and emerging creative practitioners in fashion, art, music and film.  There is by no means space here to discuss the larger scale case analyses and observations in research I am currently engaged with but the piece, through conversations with creative practitioners and by reference to legislative reform and existing commentary, highlights important strategies and positions about the issues and, in particular, the impact of digital technology (here, mobile, the internet and social media) on the efficacy of copyright law and its enforcement in this context.   In effect, one key question raised by these conversations, is just how creative enterprise sectors (e.g. fashion design; new emerging film industries) flourish when the prevailing technologies of our time present us with a culture where copyright enforcement is strained.

The internet has added more layers to variable copyright strategies used by creative rights holders across sectors. Mobile, online and social media markets have increased the scope of copying (e.g. ‘sharing’) and has also had a significant impact on brand reputation (e.g ‘liking’).  The strategic use of copyright has varied across creative sectors.  There has, for example, traditionally been a weak enforcement of copyright in the fashion design sector, compared to the use of copyright and its exploitation in music and film and, further, [post-modern] appropriation in art is not necessarily new and has often been celebrated. The question raised very quickly is whether provisions in this area of law can be elastic enough to work effectively in these contexts?

Commentators continue to suggest that the law of copyright requires radical reform to make it properly fit for the current digital age, where remix, appropriation and share culture are normative. Lessig (2009) posed pertinent suggestions around copyright reform for hybrid (formal and informal) economies and, just as he had proposed, more flexible mechanisms now appear to be in the pipeline in a range of settings/jurisdictions.

In the UK, for example, following the Hargreaves Review of Intellectual Property and Growth (2011), reformed provisions are to come into force in June 2014 under an amendment of the Copyright, Designs and Patents Act (1988). This will make reuse/remix of material in the context of parody possible and, may (or may not) confer advantages as to awareness about content.  Whilst not available for commercial enterprise, this reform may begin to address some of the issues raised in, say, art appropriation.  In the U.S. parody provisions already exist but there is on going debate about whether to expand copyright provisions in fashion (in alignment with the UK and  Europe) so that they may protect designs in a world where knockoff leaves its indelible mark (e.g. see Blakley, 2011).  Whether a reformative stance written into such legislation will be flexible enough remains to be seen.  Such reform will need to deal with a very fluid culture around intellectual property within creative sectors.  Accessing the range of positions put by practitioners was important, some of those practitioner views are presented in the following extracts.

Franco Sacchi, Documentary Filmmaker

Emergent New Nollywood, a movement within the Nigerian film industry (and its diaspora), mobilised interesting debates about the quality and content of Nigerian video film, the development and use of new distribution strategies and, crucially, debates about how the industry deals with piracy (see Kelani, 2014; Sacchi, 2014 and also Aft’s (2012) not unproblematic ‘The Myth of Nollywood and the Rise of Nigerian Cinema”).

Debates about how creative industries such as Nollywood /New Nollywood could manage intellectual property rights creatively in an era where digital piracies have arisen as an effect of open media networks are complex (see Arewa 2012; Lessig 2008).  The industry (now the second largest after Bollywood, by quantity of films released, see UNESCO 2010) requires a range of strategies flexible enough to counter and, arguably, embrace functions of piracies.  What can be referred to here as ‘countervailing strategies’, which if deployed, might offset the potential negative effects of piracies to equal value or force.  The following from a conversation with Franco Sacchi, (dir. 2007 This is Nollywood) presents interesting possibilities.

LP:  How will this industry continue to flourish?

FS: ‘Piracy is literally eating up large proportions of producers’ revenue.  But it’s hard to imagine how the industry could collapse because the demand is enormous.  The demand is not going to go away’.

FS: ‘I am convinced that Nigerians are resilient enough, creative enough and inventive enough to adapt to this terrible problem… I wonder if there are ways to turn this to an advantage and look at alternative forms of financing the films … through sponsorship; product placement; or, fully financing films upfront.  An average Nollywood film can reach audiences of 10 to 50 million, an enormous amount of people.  The tremendous impact these films can have has not been leveraged yet.  It’s not my original idea, but I personally believe this is a solution.  The risks could be mitigated, taking advantage of the notion that so many copies will be distributed, even if through piracy.’

(see also Lobato (2012) Shadow Economies of Cinema on points raised here)

Tom Friedman, Artist

Cultures of appropriation in art has, as Tom Friedman (2014) and other commentators have pointed out, been a defining feature of much art in the twentieth and twenty first century. Appropriation in art has, for some, been contentious. Tom Friedman points out, however, that the effect of homage, for example, is to add something new to the meaning of the piece and, clearly the context(s) of the making of the work plays a very important role.  For Friedman, it seems two main positions are key.  Firstly, the intricate depth of detail, precision and fluidity in his work, for example, make it very difficult to replicate the work and, much of the work would not subsist properly in any event in digital form.  The work simply cannot be experienced out of its context, one has to be physically present to understand its full impact. Secondly, interest in the author/ artist continues to prevail, the ‘badge of origin’ or authorial (‘who is that?’) element is still very important in markets for art, whether via online, social media or otherwise (author’s interview with Friedman, 2014).

Andrew Ibi, Fashion Designer

Fashion knockoff, has arguably had a positive impact on the sector (see Raustiala and Sprigman, 2012).  Ibi’s own experience of knockoff culture led to strategic thinking on his part, using countervailing strategies, which could strengthen his position. Noting that knockoff of his own work by big brands meant he needed to continually shift the ‘goal posts’ by reinventing himself.

In the world of online and social media, according to Ibi, brands need to be selective:

AI: ‘When I first opened The Convenience Store, I wasn’t on the internet and the internet wasn’t such a high player in contemporary fashion.  Independent stores flourished by customer service, shop fits, visuals and typically the aesthetics and tactility of the brand.  They never really existed online, but that all changed.  Suddenly your shopping became global.’

AI: ‘Authorship is an interesting question now.  If you are on e.g. tumblr.com the origin of the work is not necessarily known.  Once a design has travelled on social media the design looses its value.  It’s like ‘Pharell’s hat’, it went from being iconic to pretty much no value within a week.  Social media removes that ‘gloss’. . . The problem is that by the time a product hits a store it has been around every blog, every instagram and [with that] it’s not interesting anymore.’

AI: ‘There are many ways to work with technology, it is okay if you use technology [simply for] your profile but [problems] arise in social media markets (e.g. selling designs online).  It’s part of the reason luxury brands have been slow to use the internet’ (see also Okonkwo’s (2010) commentary on this issue).

Author: Landé Pratt, Kingston University London

Date: April 2014

Bibliography

Arewa, O. (2012) The Rise of Nollywood: Creators, Entrepreneurs and Pirates UC Irvine School of Law Research Paper No. 2012-11

Aft, R. (2012) The Myth of Nollywood and the Rise of Nigerian Cinema, IndieWire

Blakley, J. (2011) Copyright Protection Still a Possibility for the Fashion Industry http://johannablakley.wordpress.com/2011/07/20/copyright-protection-still-a-possibility-for-the-fashion-industry/

Blakley, J. (2010) Lessons from Fashion’s Free Culture http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture?language=en

Hargreaves, I (2011) Digital Opportunities: A review of intellectual property and growth http://www.ipo.gov.uk/ipreview-finalreport.pdf

Haynes, J. and Okome, O. (2000) Evolving popular media: Nigerian Video Films. In Nigerian Video Films. Haynes, J. (ed)

Lessig, L. (2009) Remix: Making Art and Commerce Thrive in The Hybrid Economy. Penguin Books

Lobato, R. (2012) Shadow Economies of Cinema: Mapping Informal Film Distribution.  BFI, London: Palgrave Macmillan

Lobato, R. (2012) A sideways view of the film economy in an age of digital piracy. In The European Journal of Media Studies June 1, 2012

Okonkwo, U (2010) Luxury Online: Styles, Strategies, Systems: Palgrave Macmillan

Raustiala, K.and Sprigman, C. (2012) The Knockoff Economy: How Imitation Sparks Innovation: Oxford University Press

UNESCO Institute for Statistics (2012) UIS 2010 Survey on Feature Films

World Intellectual Property Review (April, 2014) IPO Publishes New Changes to Copyright Law http://www.worldipreview.com/news/ipo-publishes-new-changes-to-copyright-law-6441

Author Interviews:

Tom Friedman, April 2014, Springfield, MA

Andrew Ibi, March 2014 London, UK

Franco Sacchi, April 2014, Boston, MA

Tunde Kelani, 2014 Twitter communication

Films:

Sacchi, F. (dir. 2007) This is Nollywood