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Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev 810 (2010).

In his most recent article, Barton Beebe provides a typically sophisticated and rich analysis of the ways in which intellectual property law is used to reinforce exclusivity, much as sumptuary laws have done throughout history.  Such laws, by regulating the fashions of the citizenry, enacted a dialogue about distinction and group identity, in which those permitted to wear certain costuming could communicate to others their inclusion in a particular class.  Sumptuary laws accomplished formally what now sometimes occurs through more vague forces of collective action: the price of a designer handbag forecloses wide adoption (until its double becomes available at Target), and limited editions of collectibles ensure that the competition for exclusivity is played out openly.  The same processes take place in the noncommercial realm: the names given by those in higher socioeconomic classes to their children, for example, trickle down over time to parents in lower socioeconomic classes with particular aspirations for their children, thus diluting the prestige of the name among the wealthy, who then abandon it in the next generation.

The importance of a system of distinction is not necessarily, Prof. Beebe notes, tied to a desire for superiority or opposition, although presumably at least some individuals are so motivated.  Rather, a level of “optimal distinctiveness” allows individuals to construct their own identities while affiliating with other individuals who share their interests.  (Indeed, in some cases, these affiliations coalesce around a message of “counterconformity” that rejects the hierarchy created by status goods, thus resulting in, ironically, a new mode of conformity that further contributes to the clamor of voices all proclaiming themselves to be different.)  And for some consumers, close enough is good enough:  so long as a handbag appears to others to be a designer brand and doesn’t fall apart on repeated uses, it serves both the purpose of holding one’s personal items and the purpose of signaling one’s place in the social and economic hierarchy — as Prof. Beebe phrases it, it represents relative utility, if not full absolute utility.

Prof. Beebe contends that although the sumptuary laws of old may no longer be in force, such codes are still enacted today through intellectual property law.  The ability of modern technology to create near-perfect copies — whether of diamonds, musical recordings, or handbags — means that material manufacture no longer contains its own inherent constraints on acquisition and consumption.  Indeed, even the producers of “authentic” goods have difficulty distinguishing these simulations from their own products.  Intellectual property law, Prof. Beebe argues, provides these constraints, imposing by legal means what can no longer be imposed naturally.  Intellectual property law, after all, often concerns itself with acts of copying, impersonation, and inauthenticity: purporting to be something or someone other than the original.

To illustrate this phenomenon, Prof. Beebe considers two forms of authenticity protection that intellectual property law takes:  antidilution law and geographical indicators.  Trademark’s antidilution law nominally concerns itself not with uses that substitute for the utility of the good in the marketplace but with uses that chip away at the uniqueness of the trademark, a feature that by definition, and unlike other forms of intellectual property, is rivalrous.  As Prof. Beebe points out, however, courts’ reluctance to embrace this theory of antidilution law has led to their use of other intellectual property doctrines, such as post-sale and sponsorship confusion in the trademark context as well as copyright law, to accomplish the same goal.  Indeed, Prof. Beebe astutely notes, copyright law’s extension of infringement to works that are substantially similar to the protected work “include[s] copying that, while perhaps not fully substitutive in nature, is nevertheless dilutive of the distinctive style or ‘aesthetic appeal’ of the plaintiff’s work.”  (P. 862.)  Likewise with the pending Innovative Design Protection and Piracy Prevention Act:  As Prof. Beebe notes, it is not the threat of lost sales that motivates such legislative efforts — the market for the Versace gown is not likely to overlap significantly with the market for the department-store copy — but a desire to maintain a hierarchy of distinction in which the class-based signals sent by the wearer of the Versace gown are clear and unmistakable.

Geographical indicators and other statements of authenticity (such as those identifying a good as from a particular indigenous group) serve as a similar communication of distinction and difference.  Whereas the circumstances of production might previously have indicated authenticity — only certain producers had access to the materials and know-how that could result in certain goods — technology has often eliminated this advantage, requiring producers to communicate their products’ origin stories explicitly.  Of course, when copies can barely be distinguished on their face from the original, a statement of authenticity tends to communicate nothing more about a product’s qualities than the claimed authenticity itself.  And yet presumably, as Prof. Beebe suggests, these statements are made because consumers care about such origins.  It matters to them from whom or from where a product originated — that “Champagne” comes from France, not from California — even though the qualities of that product may be identical to its differently denoted competitor.

The use of intellectual property to replicate the force of sumptuary laws, argues Prof. Beebe, unmoors intellectual property law from its core interests in promoting the creation of goods so as to eventually encourage copying (in the case of copyright law and patent law) and in ensuring consumers are able to find the goods or services they want without being confused as to the product’s source (in the case of trademark law).  Prof. Beebe is somewhat despairing of any major change in this state of affairs, although he notes one bright spot on the horizon: the emergence of a commons-based system of innovation in which freely given creation, rather than consumption, is the focus.  In order for this system of innovation to flourish, however, it needs to provide contributors the reputational gains that, at least in part, inspire them to create and contribute.  So, as Prof. Beebe concludes, attribution becomes a key value that intellectual property law should promote, if only by encouraging “the growth and extension of the social movements that both rely on and help to propagate this system of social distinction.”   (P. 885–86.)

Prof. Beebe does caution that the modes of attribution that allow innovators to get credit for their work are the same modes that allow designers to promote their sumptuary code–based interests, but this should concern us only so much.  So long as consumers of all types — whether economic or intellectual — know what they are getting and from whom they are getting it, the choice as to how much to consume from what sources should remain theirs.  This is not to say that intellectual property law is currently operating within such narrow boundaries — Prof. Beebe’s discussion of post-sale confusion, which is typically not confusion at all, illuminates the fact that trademark owners use the law in many cases not to eliminate confusion but to eliminate competition.  But it is to say that intellectual property law should not much care that Louis Vuitton’s trademark has a signaling effect as well as a source-identifying effect, even if some might believe that the purchase of the former is a wasted expenditure.

The importance of attribution and our fluid system of naming practices also mean that intellectual property law has more work to do about what authorship and source mean in the realm of creative products.  Although these are exalted concepts in copyright and trademark law, they are more complicated in practice.  Copyright law uses the word “author” both for the writer whose hand holds the pen and for the corporate entity that merely sponsors the creative work, and trademark law allows corporations to disseminate goods under various sub-brands and change their names after public relations blunders without fear of liability.  And sometimes, as in the case of Andy Warhol’s Factory — which created original “Andy Warhols” for which the artist’s primary role was to affix his signature — a communicative product complicates questions both of authorship and of source, leaving us the task of distinguishing authentic from inauthentic.  For now, we can be fairly confident that, contrary to the Court’s view in Dastar Corp. v. Twentieth Century Fox Film Corp., authorship and source are indeed of interest to consumers of creative products.  And as Prof. Beebe correctly asserts, it will be intellectual property’s challenge going forward to determine how to appropriately address these interests.

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Cite as: Laura A. Heymann, Distinction With(out) a Difference: Attribution’s Challenge to Intellectual Property Law, JOTWELL (September 30, 2010) (reviewing Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev 810 (2010)), http://ip.jotwell.com/distinction-without-a-difference-attributions-challenge-to-intellectual-property-law/.