Grimmelmann: “Is Fashion a Bad?”
posted by Frank Pasquale
I always enjoy James Grimmelmann’s blog and learn much from his articles. He combines a passion for precision with an unerring sense of the big picture. That’s evident today on the Picker MobBlog discussing Raustiala & Sprigman’s work on IP protections (or the lack thereof) in the fashion industry. Rather than engage the usual dialogue on innovation maximization, Grimmelmann asks flat out: is fashion a bad?
Sure, the fashion cycle may work for the fashion industry, but is that really something we should be glad about? . . . If low IP protection is good for the fashion industry because it enables rapid copying and a quick cycle of obsolescence, and if that cycle involves waste induced by conspicuous consumption, then isn’t a low IP regime a bad thing?
I’m sympathetic with Grimmelmann’s position, and this gap is symptomatic of a larger problem: “most economists believe that the core of economics can be developed with no assumptions at all about what an economy should aim to provide” (Dupre & Gagnier). But I also feel obliged to give the other side its due. And recently, one of the most enthusiastic exponents of laissez-faire here has been Virginia Postrel. Consider this encomium to style:
Even analysts who do not view luxury goods as waste do not [adequately] credit the goods’ intrinsic sensory appeal. . . . [They have] a hard time noticing any qualities beyond status badges and advertising-created brand personas. [But] more is going on. . . . People pet Armani clothes because the fabrics feel so good. Those clothes attract us as visual, tactile creatures, not because they are “rich in meaning” but because they are rich in pleasure. The garments’ utility includes the way they look and feel.
So the challenge for the latter-day Veblen is to disaggregate the “status-conferring” aspect of the fashion from its aesthetic, tactile, and expressive appeal (as Jeff Harrison notes). But as Veblen himself realized, this is an inquiry that has to share in both economic and humanistic approaches. And perhaps it even involves a bit of “norm entrepreneurship” in reinterpreting fashion . . .
Consider, for instance, this view of fashion from Nicholas Xenos’s brilliant Scarcity and Modernity:
[Often] the first function of fashionable objects . . . [is] to distinguish “us” from “them” – it is a negative identity (we are not them) transmitted through an affirmative judgment (the sharing of good taste). . . . [G]ood taste requires the abandonment of fashionable new objects once they have become common currency, and hence no longer marks of distinction–though it sometimes happens that the fashionable set, accustomed to the rapid changes in style necessitated by its precarious social lead, moves on to new styles without the old ones filtering down. . . .
And, finally, this damning conclusion of the book:
Chasing an image of what we would like to be like, we are less likely to be satisfied with what we are at any rnoment. We resent those whom we cannot catch and those whom we perceive as trying to catch us. Consuming is the activity of a democracy of signs; resentment is its final judgment.
Xenos’s account here is both a description and a judgment, designed to shake individuals out of the more routinized forms of status-seeking. Consider this response to a boutique related in Postrel’s book:
“The stuff was just so BEAUTIFUL, and when I looked down at my Old Navy sweater, I couldn’t help but feel a bit wanting. . . . I wanted to leave Rodeo Drive for the same reason I often avoid fashion magazines: not because I don’t care about such trivial stufi but because I DO care, and when I look at these beautiful things, I’m left with an aching feeling of desire and a slight dissatisfaction with my current life. Luxury is incredibly powerful, and it gets to almost all of us, even when we’re told it’s meaningless.”
Xenos would likely see this as a wholly artificial need induced by a consumerist culture. But Postrel actually tries to elevate it:
The status critique sees only two possible sources of value: function and meaning; and it reduces meaning to a single idea: “I’m better than you.” It denies the existence or importance of aesthetic pleasure and the many meanings and associations that can flow from that pleasure. Luxuries, in this view, offer no intrinsic appeal beyond their social signals. But only superficial people, filled with status-anxiety and insecure about their own worth, would care about those meanings. By circular reasoning, then, to be attracted to such goods is to lie a
superficial person.
Postrel then goes on to give several reasons why fashion ought to be valued in itself, as a manifestation of individual freedom, societal openness, and aesthetic sensitivity.
Can Postrel’s and Xeno’s points of view be reconciled? No. But It’s a very important debate, and kudos to James for bringing it out in the open where it belongs. Where do I stand? Well, here are some words of wisdom from Wendy Gordon:
Providing status marks with anti-dilution protection may increase the perceived legitimacy of spending one’s life pursuing a competitive ranking. In the real world, the amount of status competition isn’t fixed; I fear legally protecting status encourages real people to invest more than they should in its pursuit.
Photo: Will Ferrell’s great character Mugatu, deuteragonist of the definitive filmic treatment of the fashion world, Zoolander.
November 14, 2006 at 9:20 pm
Posted in: Economic Analysis of Law, Intellectual Property, Legal Theory
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Responses (14)
Rachel Godsil - November 14, 2006 at 10:00 pm
Frank,
I can’t wait to read full versions of both Postrel and Xenos based upon your description — but in the meantime (and with much less than full information) is it possible that Postrel and Xenos are in a sense talking past each other? If Xenos is referring specifically to “fashionable” items, then the reference is to items that will cease to have value once they are no longer favored by those deemed fasionable — the taste makers as it were. Even though she is referring to “fashion”, Postrel seems to be referring more broadly to beautiful, carefully made items that have appeal even if they are not in vogue at a given moment in time. I don’t think Postrel’s position (as you have articulated it) leads to a need to provide IP protection to fashion – but it does, in my view, rebut the claim that luxury items must be seen as a “bad” because they function only to confer (or deny) status.
James Grimmelmann - November 14, 2006 at 10:35 pm
I do love the idea that an abusive and suboptimal creativity system is perhaps the price we today pay so that the future may have the great art our screwy system created. Not necessarily beacuse I think it’s true, but because the idea itself is darkly beautiful.
There are hints of it everywhere. Medieval cities diverted a remarkable portion of their food and effort to putting up cathedrals. It took a certain ruthless oppression for the Renaissance princes to accumulate the wealth they used to finance art with which to assuage their guilt. The soulless music industry chewed up Kurt Cobain and drew hin into fatal self-loathing, but man, he wrote kickass songs. How is a messed-up system of fashion IP any different? The future will love us for our clothes!
As I said, I’m not sure whether I believe it, but isn’t the story beautiful?
greglas - November 14, 2006 at 11:33 pm
When old age shall this generation waste,
Thou shalt remain, in midst of other woe
Than ours, a friend to man, to whom thou say’st,
‘Beauty is truth, truth beauty,—that is all
Ye know on earth, and all ye need to know.’
Patrick S. O'Donnell - November 14, 2006 at 11:40 pm
The next post or comment: a celebration of Bernard Mandeville’s The Fable of the Bees… (1714).
Frank - November 15, 2006 at 5:49 am
As for Rachel’s point: YEs, perhaps they are talking past each other. I guess my problem with Postrel is that she simultaneously a) argues that the style she celebrates is objectively good and b) adopts a relativist pose in response to many critiques of the “fashion” or “style” system–as in, “who are you to judge whether [insert bizarre trend here] is good or bad!?”. If the latter point of view were soft-pedaled more, yes, I think they could be reconcilable, or at least non-contradictory. But Postrel often just ignores the commodification of advantage via the status system, so I think she’ll always be vulnerable to the Xenos critique.
James: YEs, there is a certain appeal to a Nietzschean story of the arts, an idea that some aesthetic cream will rise to the top in the midst of a harsh Darwinian struggle. On the other hand, perhaps history is written by the winners! [Perhaps the congeries of mixed metaphors in this response suggests the deeper roots of my suspicion of style!]
as for mandeville—yes–he’s a nice early example of James’s point, but I have to think once one recognizes how causation can be reversed (i.e., the market system may not merely benefit from avarice and vanity, but create it), he’s on the Xenos side. Xenos does explore the philosophical origins of economic thought with discussions of Mandeville, Smith, Ricardo, etc.
as for KEats: You’ve reminded me that I need to do a post about online communities organized around text (like LiveJournal) and images/avatars (like Second Life).
Patrick S. O'Donnell - November 15, 2006 at 8:32 am
Frank,
Xenos only mentions Mandeville in passing (he focuses on Hume, Smith, Rousseau, Malthus, etc.; I read Xenos when the book was first published in 1989 and still have it in my library) and if I recall correctly, I thought Mandeville did in fact make the point about markets stimulating avarice and vanity: first, they take advantage of such vices, and, in time and turn, such vices become part of feedback loops that stimulate frenzied commercial activity (of course I’m not implying that this is all that markets do).
Re: Postrel and Xenos
I think you’re right here that she is always vulnerable to his critique if only because any item of consumption, even if the product of human freedom and creativity, in widespread circulation owing to ’societal openness,’ and christened an object of aesthetic beauty, is subject to the economizing logic of scarcity and the corresponding logic of consumption wherein social identity is fused with horizontal and vertical social norms of status emulation in which, as Marx realized, wants and desires become transformed into ‘needs’ (and one reason why poverty and deprivation are relative: Adam Smith noted that English day-labourers of his time ‘would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct.’ Similarly, Amartya Sen notes that ‘today, a person in New York may well suffer from poverty despite having a level of income that would make him or her immune from poverty in Bangladesh or Ethiopia.’).
greglas - November 15, 2006 at 11:27 am
I haven’t read Postrel or Xenos, so I can’t really speak to their compatibility, but from the quotes above, it would seem that Rachel’s reading is right — Postrel seems to be celebrating sensual beauty as a form of value, Xenos is talking about style as a status marker.
I don’t think James is saying that Postrel’s version of fashion (call it beauty) is a bad, but I think he’s saying that legally protecting the pursuit of status (via conspicuous waste a.k.a. Xenos fashion) is a bad.
Now, for a more interesting question: play that out against copyright more generally. Are blockbuster films and platinum records (conspicuously consumed for both status and beauty purposes) “a bad” vis-a-vis other possible “low protection” alternative orders where, e.g. where we have folklore, community theater performance, and private performances of music by amateurs?
As Frank notes, if your only tool kit to tackle the question of the fashion value is Chicago School economic theory with its traditional hands-off attitude toward culture and normative aspects of valuation, well… I guess a “paradox” often simply expresses the shortcomings of the observer’s theoretical model.
Patrick S. O'Donnell - November 15, 2006 at 11:47 am
It seems intrinsic value (a la Postrel) is here obscured by, confused with, appropriated for, trumped by, extrinsic value (a la Xenos), which does not amount to a wholesale dismissal of intrinsic value, but warns us how difficult it is to distinguish the two in a thoroughly commodified culture.
greglas - November 15, 2006 at 12:58 pm
Yes, I agree it’s a mess, though I’m still personally persuaded, a la Keats, that aesthetic beauty is a quality existing outside of possessory and status questions.
I guess what I’m wondering is:how peculiar is this question to fashion? You reference Smith’s shirts and Sen’s contextual version of poverty — is a focus on this type of socially constructed “status poverty,” in James’ words, a normative bad — esp. vis-a-vis sustenance poverty?
If you really wanted to, you could spin the intrinsic/extrinsic beauty/status question into a legal IP policy question as follows: “Does the low IP protection for fashion ‘force it’ to be a status good by fomenting the value of scarcity and fashion churn? If so, would heightened IP make fashion artifacts do less status churning and produce fewer but more stable and timeless (beautiful) artifacts. As a corollary, would reduced IP protection in other areas force more churn, greater status concerns, and less beauty?”
If you prefer the outcome of greater intrinsic beauty and less status gaming, and you also think there’s something to this Low IP=status goods, then buying into this might lead you to favor high IP protections generally.
My problem with that is that I don’t buy into that. I don’t see low IP as causing the status-based fashion industry (I think it would exist just as well with high IP) and I don’t see high IP, in fashion or elsewhere, as leading to significant systemic improvement in the production of beauty (because I think low-IP regimes can be equally, perhaps even more, productive of beauty).
Of course, what is beauty and how does it relate to our IP policies? At least, since Holmes wrote Bleinstein v. Donalding, the copyright law has professed itself to be aloof to questions of aesthetic value and cultural progress – De gustibus non est disputandum. Seems like a bit of a cop-out to me.
greglas - November 15, 2006 at 1:17 pm
Correction: not “Donalding” — I meant to say: Bleinstein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).
Patrick S. O'Donnell - November 15, 2006 at 1:27 pm
greglas:
Smith and especially Sen are not talking about ’status poverty’ but rather how ’social capabilities may depend on a person’s relative income vis-a-vis those of other with whom he or she interacts.’ Thus the poverty referred to here is very real: ‘a relative deprivation in terms of income can…lead to *absolute deprivation in terms of capabiliites,* and in this sense, poverty and inequality are closely interlinked.’ (See Sen’s essay, ‘Conceptualizing and Measuring Poverty,’ in Dabvid B. Grusky and Ravi Kanbur, eds., Poverty and Inequality. Stanford, CA: Stanford University Press, 2006).
I’m not at all qualified to address the IP questions raised by James, Frank, et al.
Frank - November 15, 2006 at 1:38 pm
great comments, all…i’m traveling today but hope to respond tomorrow.
greglas - November 15, 2006 at 2:04 pm
Thanks for the cite, Patrick. Though I haven’t read much of Sen (he’s on my list), I understand the capabilities issue and I hope I wasn’t suggesting that status-based inequality wasn’t “real” or significant. The two questions it raises for me (perhaps you can tell me how Sen answers them) are: 1) as a fiscal policy matter, should resources be divided equally between efforts to ameliorate Bangladesh poverty and New York status-related “capabilities” poverty? and 2) in addressing New York “capabilities” poverty, isn’t one plausible strategic tact the “norm entrepreneurship” Frank mentions in the opening post — in other words, challenging the salience of Adam Smith’s linen shirt, etc.
Patrick S. O'Donnell - November 15, 2006 at 2:36 pm
Given the nation-state orientation of economies and fiscal policy, there’s no real likelihood that resources would ever be equally divided…. In any case, I don’t have any formula here for addressing the policy questions, as there are so many variables to be addressed and not all of them I understand. Like Marx, I do think economic globalization and free trade can, eventually, contribute to a diminution on a global scale of such forms of relative deprivation and poverty (leading to discontent in heretofore affluent societies). And I think priority should be given to those at the bottom, economically speaking, in the light of global distributive justice (and my bibliography on this subject has a number of titles that address economic policy questions).
I would need to learn more about what Frank means about ‘norm entrepreneurship’ to opine as to whether or not it’s a viable strategy for addressing capabilities poverty and inequality, but in principle I see no reason why it can’t be part of a fight against same.
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