People often want to experience aura, especially from the products we purchase. Professors Bechtold and Sprigman explore this phenomenon in their interdisciplinary and comparative article Intellectual Property and the Manufacture of Aura. It explains how and why companies manufacture aura to make their products more attractive in the market to consumers.
They offer an “eclectic array of examples” (P. 357) from Italian Bergamasco salami to Birkenstock sandals to NFTs, and more. Why do you choose a Bergamasco salami for your next aperitivo instead of any random salami? That’s likely because you are not just wanting to consume a product made of excellent ingredients from Bergamo, Italy. You are also seeking to consume a specific narrative and participate in a cultural experience implicitly communicated by the narrative aura infused into the Bergamasco salami.
One key takeaway from Bechtold’s and Sprigman’s work is that manufacturers in certain places seem to be infusing their products with narratives hoping to make a difference in the market. These “auratic narratives” work in a complex of law, marketing, social norms, communities, and businesses despite, or in part because of, the presence of multiple copies of the product and the lack of one original.
Divided into three kinds – authorial, place, and originality – the Bechtold and Sprigman auratic narrative is a descendant of Walter Benjamin’s celebrated and much discussed conception of aura. Identifying the essence of Benjamin’s aura as a “ ‘halo of preciousness’ that marks [an art object] as authentic” giving it “aesthetic authority” (P. 294), the article also builds on previous scholarship on authenticity, especially by Amy Adler and Laura Heymann.
The Bechtold-Sprigman article also exists squarely within a tradition exploring formal and informal rules of IP exemplified by the previous scholarship of Sprigman and other co-authors. But while Benjamin’s aura was tied to one, often tangible, original work of art in his celebrated 1936 article, the central move of Bechtold’s and Sprigman’s work is to see that auras now inform so many of the mass-produced copies that we buy. These copies benefit from successful storytelling, which may be backed by an intellectual property (IP) right. Key stars of auratic narratives are an author, a place, or provenance.
A second takeaway is that at times auratic narratives are buttressed by and even subsumed into IP law, including copyright and geographical indicators (GIs) and, at times, trademark laws. The authors deem this an “auratic use of IP” which deepens or invents “our understanding of the social significance of an article of consumption” (P. 299). In this sense, the authors implicitly point to a use of IP which has been perhaps more explicitly present in the control of now public domain works.
Consider, for instance, the confusion created by Italian museums’ continued enforcement of the right to an image of a cultural property under Italian cultural heritage law. While a type of mutant copyright, it is, however, intended to be something closer to the control of the auratic authorial, place and even originality narrative which Bechtold and Sprigman expertly outline.
In this sense the article opens an important door to the role of storytelling and culture in our consumption and preferences for products. There is also a role for “invented heritage” (P. 348) in the market and under IP legal frameworks. The way GIs and copyright law apply to salami and Giacometti sculptures (Pp. 320-21) give some preference to place and authorial narratives that feed into GIs’ recognition of a community and place and copyright’s recognition of an author. Should we then be thinking more critically about whether those communities and places and authors matter to the producer and marketer more than to consumers and the public at large? That is, should consumers more critically engage with the auratic narratives that are marketed to them? Should IP law engage in a more stringent or skeptical review of attempts to emphasize the author of a multiple so a producer benefits from IP protection (as Birkenstock has done to secure copyright in its Madrid sandal in Germany) (P. 317)?
The authors outline how often, in Europe, a “museum test” has at times proved decisive when evaluating whether a design is eligible for a copyright. What role do museums and other cultural institutions have in supporting auratic narratives? How should museums and cultural institutions’ role affect a new justification of IP as providing incentives “for the production and consumption of auratic experience” (P. 300)? In a world where there is a Vitra Factory Store and Design Museum (P. 313), the question seems timely and one for which this insightful article lays a foundation.
Bechtold and Sprigman give us at least one methodological tool to use when answering these questions: public goods theory. Providing IP rights based on the production of auratic narratives may be appropriate if such a right would prevent the undersupply of auratic narratives, allowing producers of multiples to prevent free-riders and allowing auratic narratives to remain uncongested.
Bechtold’s and Sprigman’s article opens a door to deeper considerations of heritage and culture in IP law scholarship that consider products designed for reproducibility in a variety of industries, from fashion to food to furniture, and art.
The application of cultural heritage law to prevent mechanical reproductions for commercial purposes of the very works of art to which Benjamin referred is meant in part to support the official supply of an auratic narrative around copies of the work of art, whether it is Michelangelo’s David or Botticelli’s Birth of Venus. This control is deployed to prevent unauthorized free-riders from referencing the auratic narrative around these same works.
The application of cultural heritage law to certain copies is meant to protect an auratic narrative. This provides a problematic example of how using the law to privilege certain auratic narratives over others can undermine cultural dialogue. This may affect the very acceptance and celebration of aura needed to support consumers’ desire to consume a specific narrative and participate in a cultural experience, as they would with a Bergamasco salami.
As a call to “debate…the optimal design of auratic IP” (P. 358), Bechtold and Sprigman’s article opens an important door for academic and practical dialogue about the power and recognition we should extend to the producers of auratic narratives that increasingly make their designs, copies, and other products cultural artifacts.
The article helps to create a bridge between two areas of law that are perceived to be different and, especially in market nations, unrelated: cultural heritage law and IP law.
Bechtold and Sprigman’s article offers an analytical framework that might overcome the silos of each law by deploying a new term, auratic narrative. Auratic narrative can encompass both heritage values and values that are more commonly associated with intellectual property, like distinctiveness and originality. Thanks to Professors Bechtold and Sprigman comparative dialogue between cultural heritage law and intellectual property law, especially for junior scholars, may be more possible, and fruitful.
