Copyright Laws: Promote Creativity or Hinder It?

Maria Barth

New Media (Bodle)

Copyright laws protect the value of creative works. The word copyright means “a set of exclusive rights granted to the author of an original work, including the right to copy, distribute, and adapt the work”. Copyright protection laws have been around since the 16th century. It began with the issue of government censorship in 1695 and, in 1710, Parliament enacted the Statute of Anne which “established the principles of authors’ ownership of copyright and a fixed term of protection” (Associate of Research Libraries Staff, 2007). Since the Statute of Anne, the US has been revising the copyright protection laws to benefit the ever-changing society. Originally, copyrights were established to protect books, but many other creative fields have incorporated this protection into their industries, from music to fashion to motion pictures. When you make illegal copies of another person’s work, you are stealing and breaking the law. According to the Recording Industry Association of America (RIAA), the current music copyright law states that “if you make unauthorized copies of copyrighted music, you’re stealing. You’re breaking the law, and you could be held legally liable for thousands of dollars in damage” (Piracy Online, 2011).

On the other hand, if you walk into a store and purchase a handbag that looks exactly like Prada’s latest fashion trend, the cops wouldn’t blink an eye. The only difference between your new purchase and the Prada bag is the price tag and the quality of material, but in music terms, shouldn’t that be considered stealing? Shouldn’t the same copyright laws apply to all areas of industry? Should the music industry follow the same guidelines as the fashion industry or vice versa, or should each respective industry follow their own rules? If everyone followed the same exact rules, how would this affect innovation and the creative process? Copyright laws have both positive and negative effects on the creative process, depending on the industry that is being affected. The music industry follows very strict copyright guidelines, while the fashion industry has very few or no copyright laws. Let’s examine how each industry uses copyright guidelines to protect the artists and whether they are actually helping or harming the creative process. Perhaps the music industry could learn something from the fashion industry, or vice versa…


When it comes to freedom of expression, what better way to express yourself than through personal appearance? For some people, clothing simply serves a purpose of a means to cover oneself. For others, clothing provides another way to express their personality and style. Fashion can be a specific and defined style, like bohemian or classic casual, or it can be whatever you decide to pull out of your closet that day. Fashion trends come and go as fast as the changing seasons, so in order to keep up, designers get their inspiration from anywhere…and everywhere! Coco Chanel once stated “Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening”(ThinkExist.Com) Because many designers pull their ideas from styles they see on the street, it is not uncommon to see similar fashion pieces created by different designers. It is even more common to see repeating fashions from one season to another. But couldn’t this “copying” infringe on copyright laws? Shouldn’t designers have some protection over their designs? Not necessarily. Allow me to explain…


 There are very few copyright laws that apply to the fashion industry, mainly because clothing serves a purpose. According to the Current Copyright Act, since clothing serves a utilitarian purpose, it can’t obtain copyright protection, aside from “features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” (Martin, 2010). Basically, the only part of a piece of clothing that can obtain a copyright is usually the logo. For example, if someone created a skirt and tired to put the GAP logo on it without the company’s consent, they would be infringing on the copyright of logo. If they saw a skirt that was sold at GAP, they could create a similar skirt with the same style and similar color, but just place a different logo on it. Many people consider these pieces to be “knockoffs”. A knockoff is a piece of clothing designed to look like a designer piece but is sold at a much lower price. As the price goes down, the quality of the material declines as well (Klein, 2010).

In 2007, New York Senator Charles Schumer proposed the Design Piracy Prohibition Act, which would give American fashion designers copyright protection against knockoffs (Klein, 2010). His policy would prevent small end designers, like Allan Schwartz of ABS, from taking a Vera Wang dress and creating a cheaper duplicate to sell to the masses; Schumer’s policy would not prevent copying indefinitely, though. Graphic design major Nader Boraie, has copyrighted a unique line of T-shirts called Labyrinth clothing; since each of his shirts is considered a work of art, he is able to copyright each one. Boraie says he understands why high-end designers would be frustrated when a low end designer copying their work and selling it at a much lower price. He states that “there is a huge difference between a high quality fashion designer’s clothing and something you get from a smaller store” (Klein, 2010). It’s understandable that a high-end designer would want protection for their work, but it also makes sense that a smaller designer would recreate the clothing to fit a lower budget. Boraie suggests that in order to replicate a piece of clothing, a certain amount of elements of the original would need to be changed. A policy could also be instituted that would allow small retailers to “gain a license to a design by paying a small fee” (Klein, 2010). If the retailer pays a small fee to gain the right to manufacture and sell a design, the designer would be compensated for their work and the company would not face legal trouble for attempting to “steal”. Everything seems logically balanced and no one should have any quarrels over money or rights to ownership. Case closed, right? Well…where does this leave innovation? If a company pays to just reuse an old idea, wouldn’t the need to create new designs and new styles decrease dramatically?


According to Mira Cantor, professor of art and design, if a designer is talented and passionate about their work, they should not need to worry about knockoffs. An excerpt from the Huntington News elaborates on Cantor’s feeling towards the knockoff issue:

“’I don’t think they need to worry about someone stealing their work,’ she said. ‘It’s an absurd way to think about your work. You’re making work because you’re inspired to make it, you feel obsessed by making it and you want the world to see what you’ve made. If somebody lifts it, it’s not going to be the same because the level of your ideas and the level of your mastery will surpass those who copy it'” (Martin, 2010).

 Designers who are confident in their designs should not worry about losing profits from lower quality material that only resembles their creations. On the other hand, copycats and knockoffs seem to speed up innovation rather than slow it down, according to Ezra Klein. “Creating knock-offs makes designs affordable, so more people can wear them. Wang and Schwartz aren’t selling to the same crowd, and there are a lot more people shopping at discount stores than at designer boutiques” (2010). Fashion not only takes original inspiration, but also builds upon other designs and ideas. The bohemian style may not even exist if designers wouldn’t have gotten inspiration from the hippies of the 1960’s and 1970’s. It seems that if copyright laws were imposed on fashion designers, it may impose too many restrictions on the way they innovate.

 The fashion industry seems to thrive on innovation, even without the protection of copyright laws. Johanna Blakely recently gave a talk about the importance of maintaining a “copyright-free” fashion industry, stating “the magical side-effects of having a culture of copying, is the establishment of trends”:

Now that you have a better understanding of how copyright laws affect the fashion industry (or in this case, do not affect), let’s examine the music industry to determine if it is affected by copyrights in the same manner…

While surfing the Internet, you come across a website with free MP3 downloads of today’s top 40 hits and so much more. You add them to your favorite music collection, burn them onto CDs to share with friends, and even upload them onto your personal website. Sounds too good to be true, right? Well, it is. Speaking as an experienced and mostly poor college student, I will proudly admit that I love free stuff, from T-shirts to food to ballpoint pens. I mean, who wouldn’t like free stuff? Before you download Katy Perry’s next smashing hit, consider this: would you download the song if you knew that by doing so, it may end up costing you thousands of dollars or even jail time? Not so tempting anymore, is it? Before you freak out, allow me to elaborate…


Music has a way of speaking to us, usually because the lyrics have underlying passion and talk about situations and experiences that we can relate to. Like fashion, music has something for everyone, whether you like country, classical, or heavy metal. People feel comfort in their music because they know that there are millions of other people who listen to it too. Over the past few decades, music has become much more accessible to more people; for example, you could go on the internet and download a song for less than $1 from any of the major music suppliers, such as ITunes or Napster. For some people, they think: why pay for songs when you can download them for free? There are thousands of websites where you can access any song you desire with one simple click. Sounds good, right? WRONG!!

 Although the music industry alone takes in $40 billion a year, the artists and their teams who creative those catchy melodies are protected under strict copyright laws (Music Copyright, 2010). The main controversy with copyrights and music is the fact that musicians depend on sales. If someone were to download a free MP3 copy of an artist’s song, they would not be compensated for it. This is part of the reason why copyright laws are so strict in the music industry. Most people just assume that if an image, song, or idea is on the Internet, it is “public domain”. Public domain refers to creative works that are available to everyone because: (1) the work did not have a copyright; (2) the rights have expired; or (3) the author has put the work into the public domain (Piracy Online, 2011).

 One of the most bizarre and rather controversial songs that has gotten a lot of media attention is the “Happy Birthday” song. The history of the song begins with two sisters from Kentucky, Mildred J. Hill and Patsy Smith Hill. In 1893, while teaching kindergarten one day at the Louisville Experimental Kindergarten School, Patty and Mildred camp up with a simple tune that was used as a simple greeting for teachers to welcome their students to class each day (Happy Birthday, 2007). Originally titled “Good Morning to All”, the catchy tune was published in the songbook Song Stories for the Kindergarten and quickly spread throughout schools across the globe. No one knows who came up with the “Happy Birthday” lyrics and put them with the Hill sisters’ melody, or when it happened. The lyrics had been published in another songbook in 1924, but somehow the two simultaneously came together. By the 1930s, the song had been used in a Broadway musical without compensation and again when “Good Morning to All” had been featured as well (Happy Birthday, 2007).

 Jessica Hill, another Hill sister who owned the rights to “Good Morning to All”, filed a lawsuit, claiming that there was an undeniable similarity between “Happy Birthday” and her sisters’ melody. Jessica was able to secure the copyright of “Happy Birthday” in 1934, and a year later, music publisher Clayton F. Summy published and copyrighted the song (Happy Birthday, 2007). “Happy Birthday” is currently under a copyright contract until at least 2030. Royalties are due for commercial uses of the song, such as singing it for profit, using it in movies, television programs, and stage shows, or incorporating it into musical products such as watches or greeting cards, as well as performances in public places. Summy-Birchard Music, part of the AOL Time Warner company, currently owns the publishing rights and takes in about $2 million in royalties annually, according to David Sangstack, president of Summy-Birchard (Happy Birthday, 2007).


So, if so many people are sharing music downloads on the Internet, does this really affect music’s bottom line? The invention of Napster in 1999 has caused file sharing  to be one of the most common online activities (Campbell, 2005). The impacts that file sharing has caused not only affects the music industry but the movie and software industry as well. So in effect, if more people share files online for free, then actual sales of those products should decline, right? According to recent research, it has no effect on it at all. In fact, it has had the opposite effect.

 A study conducted by Jupiter Research “reports that about 34 percent of veteran file swappers say they are spending more on music now than they did before they started downloading files” (Campbell, 2005). Research conducted by professionals at Harvard University and the University of North Carolina also shows findings that are inconsistent with the notion that file sharing is harmful to the music industry. Some of the benefits of file sharing include broadening music to a larger fan base, which in turn increase sales of concert tickets and merchandise (Campbell, 2005). Members of the music industry have also conducted research, but these claims usually only reflect the opinions of the researcher rather than actual statistics.

Unlike the fashion industry, music has strict guidelines to protect the rights of its artists. There doesn’t seem to be much wiggle room when it comes to innovation, but the Creative Commons is working to change that. Creative Commons is a nonprofit organization that is pushing for the legalization of music sampling (Lester, 2011). Sampling music is very similar to sampling ideas in fashion, pulling bits and pieces from different works to create something innovative and different. According to Ryan Lester, of Hilltop Views, if copyright laws would be revised to include music sampling, “it could lead to more original and creative works and possibly help relieve some of the antagonistic feelings many people have toward the music industry. The revision would not get rid of intellectual property rights; it would merely allow people to “use others’ work in a constructive way” (2011).


Copyright laws were designed to protect the creative works of artists, but some markets, like fashion, seem to profit and thrive without the “constraints” that copyrights can create.The fashion industry may not thrive the way it does now if it followed strict copyright guidelines the way the music industry does. Furthermore, if all copyright laws were removed from the music industry, it may very well fall to pieces, due to no “creativity protection” (Lester, 2011). In my opinion, I feel that every industry should not be required to follow the same exact guidelines, merely because each industry, whether it be movie, music, or fashion, is its own unique buisness. But, perhaps the music industry could learn something from fashion in terms of reducing the stringency of their copyright protection by allowing artists more freedom to “share and collaborate”…

 What do you think?  The fashion industry seems to profit without copyright laws, and reasearch has proven that file sharing (which is considered stealing, in the music industry) does not affect music’s profits at all; rather, it’s had the opposite effect. We may never know if the music industry “eases up” on its protection laws, or if fashion institutes copyrights of their own, unless of course, it’s featured in the news. Until then, I pose this question: do copyright laws affect the creative process (in any industry) in a positive or negative way? Or…should companies be allowed to determine their own copyright rules and adapt them to fit the needs of industry? Think about it…

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