Intellectual Property Law and the Sumptuary Code

" Intellectual Property Law and the Sumptuary Code ," 123 Harvard Law Review 809 (2010) Abstract This Article assesses intellectual property law's emerging role as a modern form of sumptuary law. The Article observes that we have begun to rely on certain areas of intellectual property law to provide us with the means to preserve our conventional system of consumption-based social distinction, our sumptuary code, in the face of incipient social and technological conditions that threaten the viability of this code. Through sumptuary intellectual property law, we seek in particular to suppress the revolutionary social and cultural implications of our increasingly powerful copying technology. Sumptuary intellectual property law is thus taking shape as the socially and culturally reactionary antithesis of the more familiar technologically progressive side of intellectual property law. The Article identifies the conditions that are bringing about this peculiar juncture of intellectual property law and sumptuary law and evidences this juncture in various evolving intellectual property law doctrines. The Article further predicts that intellectual property law cannot succeed in sustaining our conventional system of consumption-based social distinction and identifies in this failure the conditions for a different and superior system of social distinction, one characterized more by the production of distinction than by its consumption and one in which intellectual property law promises to play a crucial - and progressive - social role.

"Intellectual Property Law and the Sumptuary Code," 123 *Harvard Law Review* 809 (2010)

									Abstract

This Article assesses intellectual property law's emerging role as a modern form of sumptuary law. The Article observes that we have begun to rely on certain areas of intellectual property law to provide us with the means to preserve our conventional system of consumption-based social distinction, our sumptuary code, in the face of incipient social and technological conditions that threaten the viability of this code. Through sumptuary intellectual property law, we seek in particular to suppress the revolutionary social and cultural implications of our increasingly powerful copying technology. Sumptuary intellectual property law is thus taking shape as the socially and culturally reactionary antithesis of the more familiar technologically progressive side of intellectual property law. The Article identifies the conditions that are bringing about this peculiar juncture of intellectual property law and sumptuary law and evidences this juncture in various evolving intellectual property law doctrines. The Article further predicts that intellectual property law cannot succeed in sustaining our conventional system of consumption-based social distinction and identifies in this failure the conditions for a different and superior system of social distinction, one characterized more by the production of distinction than by its consumption and one in which intellectual property law promises to play a crucial - and progressive - social role.

Barton Beebe, Intellectual Property Law and the Sumptuary Code, 123 Harv. L. Rev. 809 (2010)

https://its.law.nyu.edu/faculty/profiles/representiveFiles/Beebe - IP and Sumptuary Code_1A7EE917-E701-79E2-3F302A323E4868A9.pdf

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he Roman leges sumptuariae sought to regulate luxury expenditure and enforce social hierarchy in republican and imperial Rome. 1 Since these early Roman precursors, the history of sumptuary -------------------------------------------------------------law has been a bizarre one. 2 Consider the Japanese decree of 1668 that provided that "[p]uppet costumes must not be sumptuous. Gold and silver leaf must not be used on anything. But puppet generals only may wear gold and silver hats." 3 Or consider a sumptuary ordinance of seventeenth-century Nuremberg that lamented that "[i]t is unfortunately an established fact that both men-and womenfolk have, in utterly irresponsible manner, driven extravagance in dress and new styles to such shameful and wanton extremes that the different classes are barely to be known apart." 4 Most remarkable, perhaps, is the behavior of the Venetian Senate. In 1472, it called for the appointment of Provveditori sopra le Pompe, supervisors of luxury, to enforce the state's sumptuary laws, 5 and in 1511, it issued, not for the last time, 6 a decree to the effect that "all new fashions are banned . . . . [H]enceforth no new fashion that may be imagined or told shall be suffered." 7 The next year, as the powerful League of Cambrai prepared to attack, the Senate found itself debating sleeve widths and shoe designs. 8 But it is not just the content of such laws that may strike the reader as strange. For all of the "enormous sumptuary productivity" 9 of early modern Europe or the "ferocity of detail" 10 of Tokugawa sumptuary law, these laws were almost invariably ignored, circumvented, or openly defied 11 -so that an eighteenth-century London stage character -------------------------------------------------------------would declare: "I don't care for it, now it is not prohibited." 12 Indeed, the history of sumptuary law is filled with the likes of one Hannah Lyman, who, in 1676, chose to appear before a court in Northampton, Massachusetts, in the very dress that she was proscribed from and there being tried for wearing. 13 Though historians have advanced many competing theories to explain the pervasiveness and persistence of sumptuary regulation in human social history, one general proposition appears to be well accepted: societies impose sumptuary laws in an effort to regulate and enforce their sumptuary codes. A society's sumptuary code 14 is its system of consumption practices, akin to a language (or at least "a set of dialects" 15 ), by which individuals in the society signal through their consumption their differences from and similarities to others. Laws that seek to control and preserve this code are sumptuary laws. Historically, laws seeking to govern a society's system of consumptionbased distinction have most commonly taken the form of direct controls on consumption -an example, by no means atypical, is the 1463 English ordinance limiting to two inches the extent to which the shoes ------------------------------------------------------------tion," but also because "they are attempts to restrain what cannot be restrained"); Killerby, supra note 5. 12 C. WILLETT CUNNINGTON & PHILLIS CUNNINGTON, HANDBOOK OF ENGLISH COSTUME IN THE EIGHTEENTH CENTURY 14 (1957) (quoting COLLEY CIBBER, The Double Galleon, in 3 THE DRAMATIC WORKS OF COLLEY CIBBER, ESQ. 1, 39 (London, J. Rivington & Sons 1777)). 13 See ALICE MORSE EARLE, 1 TWO CENTURIES OF COSTUME IN AMERICA 63 (1903) (quoting the court record as reporting that Lyman was censured for "wearing silk in a f[lau]nting manner, in an offensive way, not only before but when she stood P[re]sented"). 14 The metaphor of the "code" is adopted from Thorstein Veblen, who makes extensive use of it. See, e.g., THORSTEIN VEBLEN, THE THEORY OF THE LEISURE CLASS 51 (2d ed. 1912) (discussing the "latest accredited code of the punctilios as regards decorous means and methods of consumption"); id. at 201 ("The code of proprieties, conventionalities, and usages in vogue at any given time and among any given people has more or less of the character of an organic whole; so that any appreciable change in one point of the scheme involves something of a change or readjustment at other points also, if not a reorganisation all along the line."); see also ROLAND BARTHES, THE FASHION SYSTEM 35 (Matthew Ward & Richard Howard trans., Univ. of Cal. Press 1990) (1967) (discussing the "real vestimentary code" and the "written vestimentary code"); JEAN BAUDRILLARD, THE CONSUMER SOCIETY: MYTHS AND STRUCTURES 60 (Chris Turner trans., Sage Publ'ns 1998) (1970) (describing the "code" of consumer society as the system of exchange, classification, and differentiation "into which consumption practices fit and from which they derive their meaning"); PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGMENT OF TASTE 2 (Richard Nice trans., Harv. Univ. Press 1984) (1979) ("Consumption is . . . a stage in a process of communication, that is, an act of deciphering, decoding, which presupposes practical or explicit mastery of a cipher or code."); MARSHALL SAHLINS, CULTURE AND PRACTICAL REASON 180 (1976) (discussing, with respect to apparel fashion, the "code of object properties and their meaningful combinations"). For a discussion of the nature of this code, see infra section I.A, pp. 819-24. 15 DIANA CRANE, FASHION AND ITS SOCIAL AGENDAS: CLASS, GENDER, AND IDENTI-TY IN CLOTHING 247 (2000). of persons of rank could extend beyond their toes. 16 Societies have regularly imposed such controls when their governing classes come to believe that too much of their society's wealth is being wasted on conspicuous or decadent forms of consumption 17 or that their society's system of relative consumption no longer operates reliably to differentiate and distinguish -if not to discipline 18 -the various members of the society. 19 This latter problem -the breakdown of a society's consumption-based system of social distinction -has typically occurred when formerly rare commodities or their equivalents suddenly become abundant or when lower-status social groups gain the economic power to consume goods that formerly only upper-status social groups consumed. 20 It has also occurred with urbanization, which tends to complicate the signaling and recognition of social position. 21 The former problem -the squandering of national wealth -has been a constant concern but seems to be most acutely felt in times of war. 22 In this Article, I argue that we have recently undertaken a new round of sumptuary lawmaking, not just in the United States, but globally, and for reasons comparable to those that drove previous sumptuary turns. Sumptuary law did not disappear with industrialization and democratization, as is generally believed. Rather, it has taken on a new -though still quite eccentric -form: intellectual property law. To be sure, the express purpose and primary effect of intellectual property law remains the prevention of misappropriation and the promotion of technological and cultural progress. But for various reasons, -------------------------------------------------------------we are increasingly investing intellectual property law with, and forcing the law to adapt to, a new purpose. This purpose is to preserve and stabilize our modern sumptuary code in the face of emerging social and technological conditions that threaten its viability and that intellectual property law is uniquely well-suited to address. We are thus increasingly relying on intellectual property law not so much to enforce social hierarchy as simply to conserve -or in Pierre Bourdieu's terminology, to "reproduce" 23 -our system of consumption-based social distinction and the social structures and norms based upon it. The result is that intellectual property law now consists of two conflicting sides: the familiar progressive side of the law, which works, in the terms of the U.S. Constitution, "To promote the Progress of Science and useful Arts," 24 and the unappreciated sumptuary side of the law, which is not progressive but rather socially and technologically reactionary. This Article seeks, as a descriptive matter, to identify the conditions that are bringing about this peculiar juncture of intellectual property law and sumptuary law. It further seeks, as a predictive matter, to consider whether intellectual property law can ultimately succeed as sumptuary law and, as a normative matter, to assess whether it should. Part I begins the descriptive side of the Article by examining why modern societies have resorted to sumptuary law, albeit in a new and indirect form. For the past two centuries, our system of consumptionbased social distinction has performed an important social function: it has facilitated the construction of individual and group identity. But for two reasons, one primarily social, the other primarily technological, our modern sumptuary code is breaking down. First, be they hierarchical or nonhierarchical in nature, forms of competitive consumption tend to neutralize each other's distinctiveness, potentially making all consumers less distinctive over time. As various cultural practices attest, this potential has lately become a reality. Our ever quickening "arms race" of competitive consumption is increasingly producing little more than indistinction, meaningless difference, noise. Second and closely related, our material conditions no longer support the particular conditions of scarcity -or its aestheticized form, which we call rarity -that our sumptuary code requires to operate. In a time when "cul- ------------------------------------------------------------ tured diamonds" are said to be more perfect than "natural diamonds," 25 and when most competitively consumed goods can be persuasively simulated, our increasingly powerful copying technologies threaten quickly to dilute the rarity and thus the distinctiveness of otherwise distinctive goods. While a "post-scarcity society" 26 no doubt remains as far off as it has ever been, a post-rarity society is already upon us. The power of our mimetic technology has thus forced a difficult question: how can a "culture of the copy" 27 dedicated to and increasingly capable of the reproduction and near-production of nearly everything also produce distinctions, rarities, uncopies, and how can it protect these distinctions from the very forces of dilution that characterize the culture? More essentially, how can a powerfully mimetic culture maintain a sumptuary code? As Part II explains, the answer has emerged, if ultimately by default, in intellectual property law. If we wish to preserve our system of consumption-based distinction, then we require a set of laws to do the work that our material conditions once did; if technology has stripped nature of its ability to enforce rarity, then culture must fill that role. Crucially, however, we can no longer control competitive consumption directly, for no free market democracy would countenance such restrictions on consumer sovereignty. We have thus turned to intellectual property law because it is the one area of law (outside of prohibitions against fraud) that is capable of protecting forms of distinction from imitation and overproduction. Simply stated, while many characteristics of goods may now be both technologically and legally imitated (for example, the physical structure of diamonds), those characteristics protected by intellectual property law, while they may be technologically imitated, may not be legally imitated (for example, brands of diamonds). While intellectual property law will not directly control which class of consumers may consume which distinctive goods, as did previous forms of sumptuary law, it does provide us with the means to govern the modern sumptuary code indirectly, by facilitating the private control of the production of such goods through the prevention of the unauthorized copying of them. This alone may explain why so much of our sumptuary code is now based on distinctive intellectual properties (such as trademarks) and why so much of our intellectual property enforcement is devoted to protecting such properties from unauthorized copying. Intellectual properties are typically easily commodifiable, widely available, and clearly legible forms of rarity. More importantly, for all of their susceptibility to counterfeiting, they ------------------------------------------------------------- 25 See Vanessa O'Connell, Gem War, WALL ST. J., Jan. 13-14, 2007, at P1. 26 MURRAY BOOKCHIN, POST-SCARCITY ANARCHISM, at xvi (3d ed. 2004). 27 HILLEL SCHWARTZ, THE CULTURE OF THE COPY (1996). are the most stable such forms of rarity that we have left. Thus, intellectual property law has not so much assumed the role of sumptuary law as had that role thrust upon it, with the result that certain areas of intellectual property law are undergoing a "functional transformation" 28 orienting them toward the governance of our sumptuary code. Part II focuses on two areas of intellectual property law that are especially revealing of the law's sumptuary turn. The first is antidilution protection, a once obscure form of intellectual property protection that was thought to apply only to trademarks, if even to them, but that is now being implemented in one form or another across the full field of intellectual property law, including copyright and design protection law. Antidilution protection is being implemented so widely because it provides the means to address the quintessential problem of a relentlessly mimetic culture: the problem of dilutive copying. It is well understood that substitutive copying damages creators' incentives to create copyable works. It is less well understood that dilutive copying not only damages creators' incentives but does much worse, for dilutive copying also damages the utility, specifically, the relative utility, of the works themselves by diluting their distinctiveness, by rendering them commonplace. Antidilution protection recognizes that the utility of certain intellectual works is exhaustible and that their consumption is rivalrous. It seeks to do what antisubstitution protection often cannot, which is to preserve the distinctiveness of such works and ensure that they may continue to distinguish their consumers. The second and related area consists of what might be termed "authenticity protection." Geographically and historically authentic goods, such as European wines or Australian aboriginal graphic expression, confer on modern consumers a special form of distinction: the distinction of possessing authentic originals rather than copies. Yet modern mimetic practices have proved capable of reproducing the material characteristics of authentic originals, which is diluting the distinctiveness not only of these characteristics, but also of their originating cultures. More essentially, such practices are reducing authenticity to a purely intangible, intellectual characteristic of goods. Traditional producers have accordingly turned to various forms of intellectual property law, such as geographical indications law and traditional cultural ------------------------------------------------------------- 28 See KARL RENNER, THE INSTITUTIONS OF PRIVATE LAW AND THEIR SOCIAL FUNCTIONS 81 (O. Kahn-Freund ed., Agnes Schwarzschild trans., 1949) (discussing the process of "functional transformation" in which the function of a law or set of laws may change even though the form and content of the law may remain the same); see also HUNT, supra note 2, at 13 (arguing that the history of sumptuary law provides a "case study of the 'functional transformation' of legal norms whereby the same legal framework is deployed in changed circumstances and in the service of different projects"). expressions protection, to advance and defend the authenticity of their goods and their cultures. As Part II seeks to show, the adaptation of antidilution and authenticity protection to serve sumptuary ends is especially revealing because, in serving these ends, both modes of protection operate according to assumptions that run contrary to nearly everything we conventionally believe about the nature of intellectual property and the purposes of intellectual property law. Both reveal the extent to which the sumptuary side of intellectual property law is emerging as a strange, inverted version of the progressive side of the law, with possibly severe implications for the coherence and efficacy of the law as a whole. Part III predicts that sumptuary intellectual property law cannot succeed in stabilizing the modern sumptuary code, but asserts that this outcome is normatively desirable. In its sumptuary aspect, intellectual property law aggressively protects existing intangible forms of distinction from unauthorized copying and dilution, but in its progressive aspect, intellectual property law also strongly encourages the development of new such forms of distinction. The result is a dangerously open-ended form of sumptuary law that will only destabilize our sumptuary order all the more. Yet this promises to be a fortunate failure. In advanced post-industrial economies if not elsewhere, intellectual property law has been embraced as a last redoubt for a social system so much of whose received social and cultural norms are based on conditions of scarcity and rarity and so much of whose technology is increasingly able to overcome those conditions. In its sumptuary aspect, intellectual property law is an effect of, at the same time that it has become a cause of, social "inertia." 29 By contrast, the phenomena of dilution and inauthenticity attest to the socially progressive, even liberatory potential of our mimetic technologies to render obsolete, by flooding it with copies, our system of consumption-based social differentiation. We have enlisted intellectual property law in a last-ditch and ultimately futile effort to suppress this socially revolutionary potential of our copying technology. Part III argues that our doing so is inconsistent with the progressive project of intellectual property law specifically and of modernity more generally. In France, as in certain other European countries, it is a criminal act not simply to manufacture or sell, but also to possess, a counterfeit -------------------------------------------------------------good, regardless of where one purchased it. 30 Yet this did not dissuade a South Korean university student from walking into a Chanel store in Paris in 2002 and demanding that the store repair the broken shoulder strap of her Chanel bag, which the store did without charging and with "profuse apologies." 31 As the student well knew, the bag was a counterfeit, but the Chanel employees, even upon closely inspecting the bag, simply could not tell. 32 Unbeknownst to them, they had come face to face with a legendary South Korean "super copy," 33 the threedimensional analogue of the perfect digital copy. The purpose of this Part is to explore the implications, and, in particular, the social implications, of the kinds of mimetic technologies that produce super copies and that empower modern-day Hannah Lymans the world over to defy our sumptuary code -and now our sumptuary law as well. Too often in discussions of intellectual property law, we focus solely on the economic implications of such technologies, on how they undermine authors' and inventors' incentives to create or invent and thus slow "Progress." This Part focuses instead on the implications of such technologies for our system of consumption-based social distinction. With their ability rapidly to reproduce and disseminate imitations of distinctive material goods, such technologies are destroying the capacity of material goods reliably to confer distinction and are shifting the emphasis of our system of social distinction toward the consumption of distinctive intellectual properties. This shift has profound consequences. Most significantly, we can no longer rely on the materiality of material forms of distinction to mod-------------------------------------------------------------- 2003), stems from a comparable set of facts. There, the defendant purchased 594 "Jackie-O"-style Gucci bags from a reputable third-party distributor and eventually sold all but six of them. In an effort to verify the authenticity of the bags, the defendant sent an employee to a Gucci outlet on the pretext that the employee had received the bag as a gift and wanted to check its authenticity. A store clerk inspected the bag and stated that it was authentic. The defendant also sent another, damaged bag to a Gucci repair center, which repaired and returned the bag without question. In fact, all 594 bags were counterfeit. Id. at 229-30. Remarkably, the district court declined to order the defendant to recall the counterfeit bags "because the quality of the counterfeit bags and the relatively high price Daffy's consumers were willing to pay for them undermined claims of a tarnished Gucci trademark." erate the velocity of the fashion process. This threatens to intensify the fundamental problem of competitive consumption, which is that it tends to take the form of a competitive "arms race" in which forms of distinction neutralize each other's distinctiveness. Indeed, the shift to immaterial forms of distinction, which are themselves highly susceptible to unauthorized copying, threatens to do more than merely intensify this problem. It has the potential to exhaust altogether our system of consumption-based social distinction. To defend this reasoning, I first briefly discuss the function and operation of this system. I concentrate in particular on the nature of the fashion process because it is through the complex operation of this process that consumer societies allocate social distinction. I then address the negative consumption externalities problem that besets competitive consumption. Finally, I consider the potential of our mimetic technologies to overwhelm the operation of the fashion process and our system of consumption-based social distinction along with it. While traditional sumptuary law may have gone into decline with the rise of industrialization and democratization, the sumptuary code did not. With the emergence of consumer society, it has only intensified. A large body of empirical social science work has demonstrated that human beings feel a need to conceive of themselves as distinctive, both to support their self-esteem and, more fundamentally, to form and preserve a coherent sense of self. 34 In constructing a distinctive identity, individuals do not necessarily seek to feel hierarchically superior or diametrically opposed to others, 35 nor do they seek to feel absolutely unique. On the contrary, in their search for an equilibrium of "opposing drives for assimilation and differentiation," 36 individuals seek a level of "optimal distinctiveness" 37 by aligning themselves with certain . 35 See C.R. Snyder, Product Scarcity by Need for Uniqueness Interaction: A Consumer Catch-22 Carousel?, 13 BASIC & APPLIED SOC. PSYCHOL. 9, 20-21 (1992) ("[T]he underlying engine that drives the Catch-22 carousel is not social status, although this may be an important contributing source of energy that keeps the wheel going. Rather, it is the sense of specialness per se that the scarce possessions impart to the individual's self that is the critical force."); see also Wilfred Amaldoss & Sanjay Jain, Pricing of Conspicuous Goods: A Competitive Analysis of Social Effects, 42 J. MARKETING RES. 30, 30 (2005) ("An important implication of [uniqueness research] is that people could choose to buy a different product merely for the sake of being different from other consumers rather than to display their wealth or social status."). 36 Marilynn B. Brewer, The Social Self: On Being the Same and Different at the Same Time, 17 PERSONALITY & SOC. PSYCHOL. BULL. 475, 478 (1991). 37 Id. at 475 (emphasis omitted). groups and differentiating themselves from certain other groups. 38 Importantly, the individual's pursuit of distinctiveness depends at least in part on the perception of others; to feel distinctive, the individual must believe that he is perceived by others as distinctive. 39 Though the need to feel distinctive appears to be a universal human motivation, standards of optimal distinctiveness and the specific means of achieving it may vary considerably across cultures and time. 40 As social theorists such as Georg Simmel 41 and Edward Sapir 42 (and Caroline Foley 43 ) hypothesized a century ago, and as has since been well demonstrated, 44 individuals in modern, urban societies tend to experience an especially intense "counterconformity motivation" 45 to differentiate themselves from the mass of others, albeit by asserting their similarity to some subset of those others. Over the past century, and particularly in the kinds of urban, industrialized societies to which Simmel and Sapir devoted much of their attention, individuals have increasingly acted on this motivation through the consumption of what they perceive to be and what they believe others perceive to be differentiating goods. 46 Other traditionally powerful dimensions BULL. 190, 197-200 (1986) (discussing the concept of "counterformity" in individuals' responses to their social context). 46 See, e.g. of assimilation and differentiation such as gender, race, religion, class, or caste are still operative in such societies, but even these dimensions are now often expressed in and mediated by habits and communities -in short, "lifestyles" -of consumption. 47 Far from being a static system of meaning, the various significations and values of the modern sumptuary code evolve according to the logic of the fashion process. This process is the recursive social mechanism by which (1) individuals pursue optimal distinctiveness through the innovation and copying of inter-and intragroup forms of distinction; (2) certain of these forms are copied so extensively that they no longer define or differentiate the group as against other groups or the individual as against other individuals in the group; and (3) the individual or the group then innovates new or copies other forms of distinction. 48 Dilutive copying, be it authorized or not, is the primary driver of this process, or as Simmel famously remarked: "As a fashion spreads, it gradually goes to its doom." 49 Such copying both destroys the distinctiveness of existing fashions and creates the need for new ones. 50 To take a notorious example from the luxury goods sector, Pierre Cardin licensed his trademarks so profligately -"by the 1980s he had lent his name to up to 800 products, including toilet-seat covers" 51 -that the distinctiveness of his brand was quickly diluted, clearing the way for the rise of other luxury brands more careful about the risks of overexposure. 52 Though typically the most familiar examples of the relation between dilutive copying and the fashion process come from the world of ------------------------------------------------------------- high-status apparel goods, it cannot be emphasized enough that the fashion process involves far more than mere changes in apparel fashion. It is crucial to separate the well-advertised myths of Vogue magazine or the cinematic license of The Devil Wears Prada from the reality of the fashion process as it operates across a wide range of goods and social groups 53 (and academic disciplines 54 ). The traditional economic account of the fashion process incorrectly assumes that individuals and groups innovate new fashions primarily to assert their status as hierarchically superior to others and copy preexisting fashions primarily to assert their status as hierarchically equal to others. 55 These assumptions may have been appropriate when the likes of Bernard Mandeville or Adam Smith made them centuries ago, or even when Thorstein Veblen and Simmel made them last century, but they no longer offer a comprehensive explanation of the modern global fashion process. 56 While the "trickle-down" theory of the fashion process may greatly aid quantitative analysis, it has, as an empirical matter, long been discredited. 57 Studies of the fashion process in the United States, 58 the developing world, 59 and elsewhere 60 show that new fashions emerge from and spread to diverse locations throughout global culture. 61 In innovating or copying them, individuals seek a level of optimal distinctiveness that need not necessarily confer hierarchical status. 62 Indeed, as 53 See GILLES LIPOVETSKY, THE EMPIRE OF FASHION 5 (Catherine Porter trans., Princeton Univ. Press 1994) (1987) ("[T]he dominant feature of our societies . . . is precisely the extraordinary generalization of fashion: the extension of the 'fashion' form to spheres that once lay beyond its purview, the advent of a society restructured from top to bottom by the attractive and the ephemeral -by the very logic of fashion."); id. at 6 ("Fashion is no longer an aesthetic embellishment, a decorative accessory to collective life; it is the key to the entire edifice."). 54 CATWALK (1994). 61 See CRANE, supra note 15, at 237 ("In the late twentieth century, global culture is multicentered: styles flow from centers to peripheries and vice versa."). 62 See ROBERT G. DUNN, IDENTIFYING CONSUMPTION 123 (2008) ("[S]tatus claims are now often predicated on forms of expressive behavior differentiating people along a horizontal the modern marketplace of kaleidoscopic distinctions, the "marketing of no marketing," 63 "indie brands," 64 and "mass customization" 65 suggest, commodified forms of distinction often demonstrably reject the norms of hierarchical status competition in order to achieve their ultimate purpose, which is to produce in the fashion innovator or adopter a feeling of "significant difference," 66 of being something other than a mere copy in a mass world of equivalence -thus the emerging phenomenon in which consumers display obvious fakes of high-status luxury goods as especially recherché signs of distinction. 67 As Thomas Frank has convincingly demonstrated, this commodification of counterconformity was, for example, a defining characteristic of the "Peacock Revolution" in men's apparel fashion in the 1960s and has fostered the "hip consumerism" (captured most effectively by Apple's Steve Jobs) that has followed ever since. 68 Recognizing that an individual need not feel hierarchically superior in order to feel distinctive allows us to appreciate a fundamental point about the modern sumptuary code, one that helps to explain why we have come to rely on intellectual properties to serve as distinctive goods: a good need not be especially expensive in order to confer distinction on its consumer. This is because a good may be perceived as distinctive to the extent that it is perceived as rare along one or both of at least two different dimensions. 69 First and perhaps obviously, a good may be perceived as rare because it exists in very few copies, or at least in far fewer copies than are demanded (for example, an expensive, limited-edition automobile). But second and perhaps less obviously, a good may also be perceived as rare because there are per-ceived to be few other goods in the marketplace like it (for example, an iPhone). It is along this second dimension of rarity that a firm's advertising may enhance the perceived rarity of a good at the same time that the firm is mass-producing more and more copies of it. It is also along this second dimension of rarity that a brand can become so ubiquitous, can exist in so many copies, that its very ubiquity is the basis of its perceived rarity -if not quite famous for being famous, the brand Coca-Cola is distinctive, if not unique, for its unrivalled ubiquity. This strange, seemingly paradoxical logic of rarity in the modern sumptuary code (and of the concept of "distinctiveness" in trademark law 70 ) is recapitulated in the ambiguity of the term "copy," which may refer to (1) identical reproductions of a particular good; (2) other subsequent goods that resemble, but are not identical to, the original good; or (3) identical reproductions of those subsequent goods. 71 Thus, while a limited edition good may lose its distinctiveness by being reproduced in too many identical copies, a mass-produced good -or limited edition good, for that matter -may lose its distinctiveness by being copied by too many other similar but not identical goods (for example, a Blackberry Storm or a Palm Pre). In either case, the harm is the dilution of distinctiveness -a harm that, as we will see, intellectual property law is uniquely well-suited to address. A fundamental problem with the fashion process is that social distinction is a "social scarcity," 72 not a natural one. For all of our technology, we cannot create a greater overall sum of social distinction. We can only allocate among ourselves the sum that we have. Economic thought has long recognized this problem, though sometimes grudgingly, 73 with respect to hierarchical distinction in a society, competition for which is theorized to be zero-sum in nature along a single vertical dimension. Economic thought has been less attuned, however, to the problem of the social scarcity of distinction as it affects nonhierarchical, multidimensional distinction in a society. Yet the problem of social scarcity operates here as well and is arguably more serious. For ------------------------------------------------------------ in seeking to create ever more forms of nonhierarchical distinction, a system of consumption-based social distinction has the potential to reach a limit, a congestion threshold, beyond which social distinction itself is rendered indistinct. This latter point is not obvious, but is crucial to understanding how intellectual property law may affect the fate of our sumptuary code. It is best approached within the framework of relative utility. For the purposes of this Article, I define relative utility as utility that one derives from how one's consumption compares to the consumption of others, while absolute utility is utility that one derives regardless of how one's consumption compares to that of others. 74 In isolation, in a Rousseauian state of nature, the consumer consumes only the absolute characteristics of a good, "qualities inherent in the commodity itself." 75 In society, however, a consumer may become conscious of and begin to consume a good's relative characteristics -and the empirical evidence overwhelmingly shows that consumers are highly conscious of such characteristics. 76 We may derive warmth from clothing regardless of what others are wearing (absolute utility), but in comparison to what others are wearing, we may also derive distinction (relative utility). The difference between absolute and relative utility has important implications for how we talk about intangible forms of property. It is conventional wisdom in intellectual property thinking that intellectual properties constitute nondepletable goods, the consumption of which is nonrivalrous. 77 My use of an idea (for example, a method of winemak- ------------------------------------------------------------ ing, a method of knotting a tie) does not preclude your use of exactly the same idea, nor, it is generally thought, does my use of the idea lessen the utility of the idea to you. We must recognize, however, that when we speak here of utility, we mean absolute utility. There are in fact many forms of intellectual property the consumption of which is rivalrous in the sense that they are susceptible to negative congestion externalities. One or both of us may initially benefit from the other's use of an intellectual property, particularly if we seek assimilation. But at some point, my or yet another's use of the property (for example, a method of winemaking, a method of knotting a tie) may lessen the utility of the property to you by impairing the ability of the property socially to differentiate you -just as your use may impair the ability of the property socially to differentiate me. In this sense, the utility of such forms is rivalrous and depletable. Too many users may render the property indifferent and indistinct. By utility here, we mean not absolute utility, but relative utility. The concept of relative utility also raises important questions about how the process of competitive consumption operates and to what ultimate end. If we assume, as the conventional economic account does, that in engaging in competitive consumption, consumers seek to gain rank over or equal to others, then it follows that one consumer's gain in rank or assertion of equality of rank must always result in another consumer's loss of rank. By this logic, status competition is thought to be zero-sum in nature, if not within society as a whole, then at least within specific groups within that society. 78 Worse, all may lose as each devotes more and more resources that might better be spent elsewhere to the pursuit of a fixed supply of intragroup or intrasocietal distinction. 79 For those who choose to participate, a "positional arms ------------------------------------------------------------ race[]" 80 of status seeking may condemn them to an ever-accelerating "positional treadmill." 81 The implications for human happiness of the zero-sum nature of ordinal status competition are profound and controversial, and we are only beginning to work them out. 82 Some have argued that consumption-based status competition furthers economic, technological, and even civilizational advance. 83 Others contend that it has become a leading cause of human unhappiness, particularly in advanced consumer societies. 84 The basic economic account of ordinal status competition as zerosum in nature is admirably clean in theory, but it has little to say about the messy realities of consumption in modern, highly diverse global consumer societies. Indeed, as noted above, studies of the fashion process encourage us to reject the assumption that there exists some vertical, lock-step status hierarchy -a "Great Chain of Status," 85 a normalizing Whuffie index, 86 a U.S. News & World Report league table of individual rank -to which all members of a given group or society subscribe. Instead, in engaging in competitive consumption, consumers more commonly pursue nonhierarchical, "qualitative differentiation." 87 Through their consumption, they sort themselves into a wide variety of equilibria of assimilation and differentiation that simply yield identity. 88 But shifting to this more limited assumption does not extinguish the issue of negative consumption externalities. On the contrary, it invites the question of whether the pursuit of nonhierarchical distinction confronts the same problem of "social congestion" 89 that the pursuit of hierarchical distinction is theorized to confront. Clearly, when two or more consumers or groups of consumers consume the same distinctive good, the capacity of the good to distinguish them horizontally -and, a fortiori, vertically -is impaired. But this leaves open a far more interesting question. The economic account of relative utility emphasizes the social scarcity of hierarchical status across a society, regardless of whether consumers are consuming the same goods. The question is whether there is a similar social scarcity of nonhierarchical distinction at the level of a society as a whole. Do consumers compete across society for a limited supply of qualitative distinction? Is there some social limit on the amount of qualitative distinction that societies can achieve, or at least, that members of a society can perceive in and thus bestow upon others? There is no clean answer, and I will defer much of this Article's discussion of this issue until Part III, because we have much more ground to cover before we are in a position to understand how intellectual property law's role as sumptuary law might inform that discussion. But for our purposes here, it may be enough to suggest, as various social theorists of modernity have, 90 that in increasingly massified and complex urban and now global consumer societies, it grows ever more difficult for individuals (and firms) to differentiate themselves from and make sense of the cacophony of differences, the "living crowd," 91 that envelops them in the marketplace. Members of such a society grow inured to all but the most outrageous gestures of individuation -thus the "blasé attitude" 92 that Simmel identified as characteristic of the metropolitan (to which I will return below), thus the practice of "shock advertising" 93 to overcome consumers' "advertising ------------------------------------------------------------- 88 See LIPOVETSKY, supra note 53, at 46 (emphasizing the importance of the "desire to express individual uniqueness" as what drives the fashion process). 89 HIRSCH, supra note 72, at 3. 90 See, e.g., ZYGMUNT BAUMAN, INTIMATIONS OF POSTMODERNITY, at xx (1992) ("Constantly bombarded, the absorptive powers of the public are unable to cling to any of the competing allurements for longer than a fleeting moment. To catch the attention, displays must be ever more bizarre, condensed and (yes!) disturbing; perhaps ever more brutal, gory and threatening."). 91 WALT WHITMAN, Crossing Brooklyn Ferry, in LEAVES OF GRASS 144, 155 (Doubleday 1997) (1855). 92 See SIMMEL, supra note 41, at 413. 93 See MARK TUNGATE, ADLAND: A GLOBAL HISTORY OF ADVERTISING 146-49 (2007) (discussing the practice of shock advertising). avoidance" 94 strategies, thus much of contemporary runway fashion and some of contemporary art. As individuals and groups pursue more and stronger forms of qualitative distinction, the ability of individuals to comprehend these forms approaches a limit, a point of "sensory overload" 95 or "social saturation," 96 a sort of "Gruen transfer" 97 of interpretation. At this limit, distinction itself becomes so abundant as to be perceived as indistinct; it becomes noise. 98 The result, though not exactly the same, should at least be familiar to economic theorists of relative preferences: a spiraling game of one-upmanship akin to the increasing noise of a crowded restaurant or the amplifying synesthesia of a Times Square. The result, in other words, seems very much akin to a zero-sum game, or at least to a tragedy of the commons, where commodified distinctions fail because commodified distinction is itself so commonplace. Generalizing Simmel, as the fashion process spreads, the process itself gradually goes to its doom -an endpoint that Jean Baudrillard quite pessimistically termed the "hell of the Same." 99 Regardless of whether we adopt a theoretically more cautious approach and conceive of distinction as merely hierarchical or onedimensional in nature or go further and seek to make sense of it also as horizontal or multidimensional in nature, we are thus still left with the problem of a sumptuary code whose system of commodified dis- 97 See Margaret Crawford, The World in a Shopping Mall, in VARIATIONS ON A THEME PARK: THE NEW AMERICAN CITY AND THE END OF PUBLIC SPACE 3, 14 (Michael Sorkin ed., 1992) ("The Gruen Transfer [is] immediately visible in the shift [of consumers] from a determined stride to an erratic and meandering gait."). 98 See RICHARD SENNETT, THE CONSCIENCE OF THE EYE: THE DESIGN AND SOCIAL LIFE OF CITIES 129 (1990) ("I suffer from abundance, the promised remedy of the Enlightenment. My senses are flooded by images, but the difference in value between one image and another becomes as fleeting as my own movement; difference becomes a mere parade of variety."); Douglas Kellner, Baudrillard: A New McLuhan?, ILLUMINATIONS, http://www.gseis.ucla.edu/ faculty/kellner/essays/baudrillardanewmcluhan.pdf (last visited Jan. 9, 2010) ("In a society supposedly saturated with media messages, information and meaning 'implode,' collapsing into meaningless 'noise,' pure effect without content or meaning." (paraphrasing JEAN BAUDRILLARD, The Implosion of Meaning in the Media, in SIMULACRA AND SIMULATION 79 (Sheila Faria Glaser trans., Univ. of Mich. Press 1994) (1981))). 99 JEAN BAUDRILLARD, THE TRANSPARENCY OF EVIL 122 (James Benedict trans., Verso Books 1993) (1990). tinctions faces a limit, a congestion threshold, 100 at which overall relative utility -and possibly, absolute utility as well -begins to decline. The reader may object that, in proposing this outcome, both approaches take the logic of the system to its extreme, a destination that our actual system of consumption has not yet reached and may never reach -and admittedly, this is a valid criticism of much of contemporary academic cultural theory. But we should not underestimate the significance of a fundamental transformation that has occurred in recent times in our system of relative consumption, one that has changed the nature of the goods we rely on to confer distinction and greatly accelerated the production and circulation of such goods. Like so much else of value in a post-industrial economy, our positional goods are increasingly taking the form of intellectual property. This is because intellectual property law is the one body of law that does what we have always relied on nature to do, which is to enforce the scarcity of individual forms of distinction. It is to the technological conditions that have driven this transformation that I now turn. Consider the following diverse examples of copying, some of them highly sophisticated, others decidedly less so. First, in 1954, engineers at General Electric developed a process to manufacture minute synthetic diamonds to be used primarily in abrasives. 101 Since that time, a variety of companies have developed methods to produce gemquality "cultured diamonds" that are said by many to be indistinguishable from natural diamonds. 102 In 2004, the De Beers cartel began for the first time literally to brand its diamonds with a laser-inscribed trademark. 103 Second, in his 2001 memoir Pinochet and Me, Marc Cooper records: "A recent police checkpoint in the posh Vitacura neighborhood [of Santiago de Chile] found that a high percentage of drivers ticketed for using their cell phones while in motion were using toy -even wooden -replicas. Other middle-class motorists bake ------------------------------------------------------------ 102 See Ziv Hellman, A Multi-Faceted Industry, JERUSALEM REP., Mar. 18, 2008, at 32, 33 ("Put one of today's synthetic diamonds in front of a diamantaire with 50 years' experience, give him a microscope to work with, and he still won't be able to distinguish it from a natural diamond." (quoting Guy Benhamou, C.E.O. of the gemological lab E.G.L. Ltd.)). 103 See Changing Facets, ECONOMIST, Feb. 24, 2007, at 75. with their windows closed pretending they have air conditioning." 104 Third, in Jacques Pépin Fast Food My Way, the famed chef Jacques Pépin suggests in a recipe for "Scrambled eggs with mushrooms and truffles" that "[i]f you can't find good truffles, substitute good truffle oil." 105 Pépin neglects to note that actual truffles, even "good" ones, do not produce oil of any kind; rather, "truffle oil" is a synthetic substance widely, though surreptitiously, used in high-end restaurants whose most important ingredient is usually the intensely pungent organic compound 2,4-dithiapentane. 106 Fourth and finally, between 1969 and 1973, the Italian automobile manufacturer Ferrari produced exactly one hundred 365 GTB/4 Daytona Spyder convertibles. 107 In 1985, by which time Daytona Spyders were being purchased in the resale market for up to two million dollars each, one Carl Roberts of Kingsport, Tennessee, began to sell "Miami Spyder" conversion kits, the principle component of which consisted of a fiberglass hull that could be bolted on to the undercarriage of a Chevrolet Corvette to make it appear to be an authentic Daytona Spyder. 108 Roberts sold approximately eighty such kits for as little as $8500 each before Ferrari filed suit for trademark and copyright infringement, 109 as it had already against at least one other company also engaged in the production of "Fauxrrari" kits. 110 Each of these examples of copying involves some application of copying technology, and each threatens, in its own way, the sumptuary order. By copying technology, I mean to refer to all practices -manual, mechanical, digital, genetic, and possibly other techniques -by which we make persuasive tangible copies of an intangible design or form (or in intellectual property parlance, an intangible "work"), whether this design be human-made or found in nature. Such copies ------------------------------------------------------------ are persuasive in the rhetorical sense that they need not and often do not perfectly embody some intangible design, but merely approximate that design in a way sufficient to achieve the purposes for which the embodiment of the design is used. The first and the thousandth copy of a design of a mass-produced automobile (or even of a massproduced book) are not exactly alike, but we typically find each to be a persuasive copy of the design to the extent that each functions in the way that we would expect copies of the design to function. We have come to expect that most natural, authorized, or otherwise permissible embodiments of an intangible design sufficiently approximate that design so as easily to qualify as "super copies"; the question of persuasion hardly seems relevant. But persuasion becomes relevant when we consider instead the production of synthetic, unauthorized, or nearproductive embodiments of a design, whether the design be protected by intellectual property law or not. It is thus persuasion that the wine critic has in mind when he speaks of the New World's "convincing copies" 111 of the sparkling wines of the Champagne region of France or that the art critic has in mind when he struggles to distinguish between lifetime and posthumous casts of Rodin sculptures. 112 It is also persuasion that is the concern of the luxury goods manufacturers of Italy when the market for their goods is flooded with so-called "true fake[s]," 113 that is, unauthorized manufacturing overruns produced by the same subcontracted workers using the same materials as those used to produce authentics. 114 The overriding issue in such cases is not what the good is, but how it is perceived. 115 In this last sense, copying technology has proved to be especially powerful and especially threatening to the sumptuary order when it is used to make persuasive copies of designs the main function of which is to yield relative rather than absolute utility. It has proved to be especially powerful because such copies typically need not convey the same absolute utility as the original in order successfully to persuade. 116 Purchasers of Roberts's conversion kits well knew that it ------------------------------------------------------------ 115 See THOMAS, supra note 65, at 280 ("What I realized from my tour is that people don't believe there is a difference between real and fake anymore. Bernard Arnault's marketing plan had worked: consumers don't buy luxury branded items for what they are, but for what they represent. And good fakes -the kind that can pass for real -now represent socially the same thing as real."). 116 Cf. Gene M. Grossman & Carl Shapiro, Foreign Counterfeiting of Status Goods, 103 Q.J. ECON. 79, 82 (1988) ("[C]ounterfeiters unbundle the status and quality aspects of the product, and was no more likely that the kits would invest the underlying "donor car" with the absolute utility of the Daytona Spyder -for example, its handling or acceleration -than that a wooden cell phone would yield the same absolute utility as an authentic one. Importantly, the donor car had to provide some degree of absolute utility or the ruse would fail. But just as importantly, it appears that given the reality of U.S. speed limits and traffic conditions, Roberts's customers deemed the Corvette -or, as it turned out, even a Pontiac Fiero 117 -to be sufficient for the task. Quite obviously, copying technology of this sort relies on the limits of human perception to detect, or the willingness of human perception to accept, artifice. When the demands of absolute utility are relaxed, or when the claims of absolute utility exceed reasonable human perception, so that not even connoisseurs or counterfeit investigators can tell the difference, then near-production (truffle oil) rather than reproduction (actual truffles) is often adequate. The persuasive imitation of distinctive goods has proved to be especially threatening to the sumptuary order because the circulation of such imitations impairs the ability of the imitated goods to yield relative utility, which in many cases is the only form of utility that they have to offer. 118 The mined diamond industry is as concerned now as the natural pearl industry was a century ago by the appearance of highly persuasive imitations, but the primary basis of its concern is not substitution. It is not that the consumer who would have bought a natural diamond as an engagement ring will instead buy a cultured diamond. 119 Instead, the primary basis of the industry's concern is dilution -a phenomenon to which the De Beers cartel has clearly long been quite sensitive. 120 Its concern is that an abundance of persuasive imitations will erode over time the perceived rarity of diamonds, both along the dimension of the total number of natural diamonds perceived to be in circulation and along the dimension of the number of products closely similar to natural diamonds also perceived to be in circulation. Indeed, the dilution of the perceived rarity of diamonds has apparently already begun. 121 This is arguably the primary concern -------------------------------------------------------------of the relative goods industry with respect to counterfeiting as well, including the counterfeiting of high-technology goods (such as supercarsfoot_6 or mobile phonesfoot_7 ). Admittedly, copying practices of one sort or another are as old as human mimesis itself, and as the history of sumptuary law attests, they have long been especially effective when applied to distinctive goods. Theodosius II decreed in the fifth century that anyone who unauthorizedly dyed wool "with any color resembling the Imperial purple" or caused silk "to be dyed rose-color, and afterwards with another tint . . . shall suffer the punishment of death."foot_8 A sumptuary ordinance of seventeenth-century France was careful to prohibit all but nobles from wearing linen embroidered with gold, silver, cord, or lace, "either real or imitation." 125 The seminal Trade-Mark Casesfoot_10 of 1879 arose from the counterfeiting of imported champagne,foot_11 while Judge Hand, in a trademark opinion a half century later, paused to take judicial notice of the ease with which "an unscrupulous restaurant keeper" might "substitute the domestic champagne," "especially as an evening wears on." 128 But we have arguably reached a new stage of such conduct. It is conventional wisdom that in the "Digital Age," the cost of producing persuasive -indeed, perfect -digital copies has collapsed, and that the losses to the digital content industry are immense. It is less well recognized that in our own incipient "Diamond Age,"foot_13 the costs of persuasive simulation of tangible goods have also sharply declined, -------------------------------------------------------------and the quality and speed of simulation have increased dramatically. 130 Consider that in the recent closely watched case of Tiffany (NJ) Inc. v. eBay, Inc., 131 of the 186 pieces of Tiffany-branded silver jewelry that Tiffany bought from various eBay sellers, Tiffany admitted that it could not be sure if nearly one-quarter were counterfeits or authentics. 132 Or consider that fashion designers now frequently complain (or admit), as they have to Congress, that copiers are able to distribute "perfect copies" 133 of their runway designs to discount stores before the designers themselves can distribute their own authentic copies. 134 Nearly every material rarity, every material embodiment of relative utility, can be and is technologically simulated, 135 with the result that many relative goods have become, like paper currency, little more than the means of conveyance and display of authentication deviceswhich are themselves retained and displayed (and imitated) as distinctive goods. What such practices may ultimately portend -and here this Article does take things to their extreme -is a sort of Diamond Age of the sumptuary code, if not of much else. The metaphor of the Diamond Age comes to us from science fiction writing, 136 and on that basis alone many readers may reject it -though scientists and technologists apparently do not. 137 In any event, it is at least worth brief consideration. The metaphor imagines an age of human development in which human technology is capable of cheaply replicating any material form through the manipulation of individual atoms and their structural relations, and in which this technology is widely available. The representative achievement of such an age would be humans' ability cheaply to manufacture diamond in various forms. Our increasing ability persuasively to imitate relative goods (though without necessarily imitating their absolute utility) anticipates what social role ------------------------------------------------------------ 134 See id. at 81-82 (statement of Susan Scafidi, Visiting Prof. of Law, Fordham Law School); see also THOMAS, supra note 65, at 283 ("'Counterfeiters take the original item and do a three-D scan of it. . . . The process produces perfect copies of patterns.'" (quoting an anticounterfeiting expert)); Hemphill & Suk, supra note 38, at 1170-74 (discussing "fast-fashion copyists"). 135 See, e.g., Org. for Econ. Co-operation & Dev., THE ECONOMIC IMPACT OF COUNTER-FEITING AND PIRACY 262 (2008) ("Almost anything can be counterfeited."). But see Barnett, supra note 100, at 1385 ("[I]n markets where purchasing behavior is strongly driven by status preferences, unauthorized imitation is generally imperfect."). 136 See generally, e.g., STEPHENSON, supra note 129. 137 See generally, e.g., Paul W. May, The New Diamond Age?, 319 SCIENCE 1490 (2008). intellectual property law might play in such an environment. For what the mimetic technologies discussed above ultimately predict is a kind of post-rarity world, perhaps one in which certain material forms of absolute utility remain scarce, but persuasive copies of material forms of relative utility become superabundant. Taking this further, these technologies suggest that what might be termed the "universal printer" is not simply imaginable, but an increasingly realistic possibility. 138 It may not be too much to suggest that at some point the distinction between the fifteenth-century two-dimensional printer and the twenty-first-century three-dimensional printer, capable of "printing out" tangible goods according to a digitally recorded design, will be seen to be a distinction of degree, rather than of kind. Conceptually, all industrial production has been more or less an approximation of this universal printer; the difference now is in the extreme flexibility, vaguely analogous to moveable type, 139 of our production technology. 140 In such an economy of universal printers, printing out a rhetoric of expressions and of things, all goods would be essentially intellectual goods (that is, embodiments of intangible designs) and all property, excluding space and the self, would be essentially intellectual property (as it is already in virtual worlds, though there including virtual space and possibly also the virtual self). And most significantly for our much more limited purposes here, the regulation of relative goods and of the sumptuary order would be left entirely to intellectual property law, to whose role as sumptuary law in the present day I now turn. Technologically, we are of course far from a world of universal printers, but let us pause to question how a system of consumptionbased social distinction might operate in such a world. The short answer is that without some form of intellectual property protection, it would hardly operate at all. Reproduction and near-production would ------------------------------------------------------------ rapidly diminish the capacity of most relative goods to differentiate. While there might remain certain relative goods that would continue to set the very rich apart (for example, superyachts, space travel, English soccer clubs), the majority of consumers would likely confront a marketplace consisting of goods that will set them apart only briefly, if at all, before quickly being copied and rendered commonplace. Indeed, a system of consumption-based differentiation in such a world might operate very much like the current system of apparel fashion in the United States -which grants no significant intellectual property protection to clothing designs -but with signs of difference burned through at an even more accelerated pace, and with designers of those signs complaining even more desperately that unauthorized copying is bankrupting them. 141 It is likely, therefore, that if our goal were to perpetuate a system of consumption-based social distinction, then we would offer exclusive rights in the intangible designs of distinctive goods or at least in some distinguishing characteristic of those designs (such as a word-or image-mark or other design feature) in order to prevent the unauthorized copying of them. We would do so not simply to promote the further production of commodified forms of distinction (by incentivizing designers with the assurance that they can recoup the costs of innovating and advertising their designs), but also to preserve distinction that has already been commodified (by preserving the rarity of designs or their design features and thus their capacity to distinguish). It is likely, furthermore, that designers (and consumers) would respond accordingly, by gravitating toward the production (and consumption) of designs that are protectable. And to ensure, in the name of technological progress, that the promotion of relative utility does not conflict with the promotion of absolute utility, we would insist that any design that yields the latter be protected only by a utility patent. In sum, confronted with a world in which reproduction technology had transcended any limits on the reproduction or near-production of commodifiable rarities, we would use intellectual property law to enforce those limits in order to ensure that individuals could continue to differentiate themselves by means of the copies, otherwise copious, that they consume. This is, of course, what intellectual property law is already doing, be our world one of universal printers or not. We are already relying on intellectual property law and laws akin to it to preserve the conditions of commodifiable rarity that our system of consumption-based distinction requires to operate. For a simple example, handbag makers, such as Louis Vuitton or Coach, have long resorted to the expe- -------------------------------------------------------------dient of imprinting their marks in repeating patterns on the visible surface of their products not just to amplify the projection of the status symbol but also, and possibly more importantly, to ensure that copyists cannot make persuasive copies of the unprotected material good without also infringing the protected trademark. The primary limitation of intellectual property law in this respect is that it will only preserve the rarity of design characteristics that qualify for intellectual property protection. This is why so many of our relative goods have assumed dematerialized form, and in particular, the dematerialized form of trademarks, 142 which typically have the virtue of being highly demonstrable. The emergence of very powerful copying technology has thus proved to be both a crisis and an opportunity for intellectual property law, though we tend to focus only on the former. The very technology that makes intellectual property law so difficult to enforce is the same technology that has compelled us to turn to intellectual properties to perform the role of positional goods and to intellectual property law to perform the role of sumptuary law. It is because our copying technology can now produce persuasive simulations of diamonds, for example, that our system of competitive consumption has come to focus on brands of diamonds and on preventing that same technology from counterfeiting such brands. The sumptuary side of intellectual property law manifests itself in various obvious ways. Most notably, anticounterfeiting laws, which are particularly stringent in Europe 143 and growing increasingly so in the United States, 144 have turned our courts, police, and customs officials into modern-day Provveditori sopra le Pompe. Intellectual property-based restrictions on resale and parallel imports also work to preserve product exclusivity. 145 Our national trademark systems, ------------------------------------------------------------ ), http://curia.europa.eu/jcms/jcms/j_6 (enter "C-59/08" in "Case no" field and select "Search"), in which the European Court of Justice held that the breach of the terms of a licensing agreement prohibiting the resale of luxury goods to discount stores will constitute trademark infringement if the producer can show that the resale "damages the allure and prestigious image which bestows on those goods an aura of luxury." Id. at Ruling 1; see also Case C-337/95, Parfums Christian Dior SA v. Evora BV, 1997 E.C.R. I-6013, I-6033 (opinion of Advocate General Jacobs) ("The meanwhile, quite deliberately offer exclusive rights in status symbols 146 and promotional or "merchandising" uses of trademarks, 147 while our patent systems do not hesitate to grant utility patents for inventions the stated utility of which is clearly relative rather than absolute in nature. 148 Finally, our right of publicity laws are best explained as protecting from overcopying the celebrity's persona, 149 which itself may fall prey to a variety of mimetic practices, such as look-alikes, 150 sound-alikes, 151 miniature dolls, 152 and most impressively, life-sized animatronic robots formed in the celebrity's image. 153 Less obvious, but more revealing of the degree to which intellectual property law is being employed to govern the sumptuary code are two closely related modes of intellectual property protection that are the -------------------------------------------------------------owner of the trade mark may . . . oppose the use of his mark by a reseller for the purposes of advertising where such advertising is liable to damage significantly the reputation of the trade mark and of its owner. In the case of luxury goods such as perfumes, such damage may consist in damage to the luxurious image of the goods."). 146 subject of this Part: antidilution protection, which is primarily national in nature, and authenticity protection, which is primarily international in nature. Both of these modes seek to suppress the social implications of copying technology, the former by seeking to protect commodified forms of distinction in general from dilutive copying, the latter by seeking to protect commodified forms of geographical and historical authenticity in particular from forms of dilutive copying that corrode the "aura" of their authenticity. Authenticity protection is essentially a more specific form of antidilution protection. First, however, to give context to my discussion of these modes of intellectual property protection, this Part begins by considering two works that together go far toward registering precisely the ideology of progressive intellectual property law that sumptuary intellectual property law reacts against when it functions as antidilution and authenticity law. Conventional progressive intellectual property law subscribes to what might be termed the ideology of the copy, which equates copying with progress. This ideology holds that the practice of copying (be it of books or of automobiles) should not be restricted except when doing so will ultimately result in more or better copying -or, in the face of ecological limits, ultimately avoid less or worse copying. Emphatically modern in orientation, the ideology of the copy shares in the Enlightenment view that more copies, like more speech, is always better. It holds this view because it assumes that intellectual works possess the public goods characteristics of being inexhaustible and nonrivalrous in consumption. Relatedly, it assumes that such works convey only absolute utility. We therefore prevent unauthorized copying of protected works in order to preserve creators' incentives to create them (by preventing defendants from substituting their copies for plaintiffs'), not to preserve the utility of the works themselves, which is thought to remain intact regardless of defendants' conduct -or plaintiffs' conduct, for that matter. 154 As Thomas Jefferson did in his famous letter to Isaac McPherson, 155 the ideology of the copy conceives of intellectual works in optimistic, almost naïve terms as works unaffected by the quality or quantity of their material embodiments and uncorrupted by their contact with society. - ----------------------------------------------------------- The ideology of the copy is, furthermore, an intensely unsentimental ideology, one that has little regard for historical origins and that is suspicious of that which defines itself in opposition to copying (for example, authentic, genuine originals) or which otherwise resists copying (for example, secrets, or more generally, the esoteric). This unsentimentality is most apparent in progressive intellectual property law's relation to history. Established to "promote the Progress," 156 intellectual property law conventionally privileges innovation and discontinuity, "non-obvious" 157 breaks with tradition. To the extent that it is concerned with origins, its concern is typically directed toward determining whether such origins are found in the present and may thus form the basis for property rights in the future. Origins found in the past, in history, preclude such rights. Intellectual property law begins where history ends. Progressive intellectual property law is similarly irreverent of authentic originals, which it refers to as "copies" like any other. Copyright law in the United States, as elsewhere, distinguishes between the intangible "work" (or design) and the tangible "copies" (or embodiments) in which that work is fixed. We do not speak of "originals." Even a unique painting, one that the painter painted only once, is nevertheless a "copy" (albeit a unique copy) of the copyrightable work as its exists or existed in the painter's mind. 158 Once the term of protection on this work has run, intellectual property law conventionally holds that it should be as open to copying as any other unprotected intellectual work. No work is sacred in this regard. For proponents of progressive intellectual property law, the concern that further copying of the work might damage the work by vitiating its aura of uniqueness is, in their view, as frivolous as the indigenous belief that the rampant copying of their sacred expressions may deplete those expressions of their magical powers. This ideology -which many readers may well take for granted as no "ideology" at all -has progressive technological and economic consequences that are clear and well understood, but it also has progressive, even radical cultural and social consequences as well, and it is these consequences that we are calling upon sumptuary intellectual property law to suppress. These consequences are made especially apparent in two strangely related works about copying: Walter Benja- ------------------------------------------------------------ 161 To be sure, Walter Benjamin (the German Marxist critical theorist) and Justice Scalia (the American conservative jurist) make for an odd and no doubt unintentional theoretical partnership. But together they register the radical potential of our ideology -and culture -of the copy. Consider first Benjamin's Work of Art essay. In it, Benjamin looked to the politicization of art -and to the politicization of film, in particular -as an antidote to European fascism's aestheticization of politics. In the process, Benjamin famously asserted that: [T]hat which withers in the age of mechanical reproduction is the aura of the work of art. This is a symptomatic process whose significance points beyond the realm of art. One might generalize by saying: the technique of reproduction detaches the reproduced object from the domain of tradition. By making many reproductions it substitutes a plurality of copies for a unique existence. 162 In Benjamin's view, multiple reproduction destroys the "authenticity" and "authority of the [aesthetic] object," the "aura" of historicity that is otherwise generated by its "unique existence." 163 Reproductive technology establishes the material conditions for a regime of cultural expression in which there are no historical origins and no unique originals, no "domain of tradition" and no unique expressions of that domain. Instead, there are only multiple copies, a mass of them, the first in possession of the same status as the thousandth or the millionth -all of them indistinct from each other; none of them bearers of reactionary "aura." For Benjamin, mechanical reproduction thus constituted a progressive, liberatory technology. Its "liquidation of the traditional value of the cultural heritage" 164 would free cultural expression from the restraints of conservative "ritual" and invest it with the revolutionary dynamism of mass -that is, communist -"politics." 165 ------------------------------------------------------------ 163 See id. ("The authenticity of a thing is the essence of all that is transmissible from its beginning, ranging from its substantive duration to its testimony to the history which it has experienced."). 164 Id. 165 See id. at 224. Justice Scalia's Dastar opinion -an opinion, appropriately enough, about intellectual property rights in a political film 166 -fully supports the break with the "domain of tradition" that Benjamin celebrated, albeit for reasons altogether different from those given by Benjamin. More significantly, it assumes that this break has already occurred. In Dastar, Justice Scalia found that the defendant, Dastar, did not engage in reverse passing off when it produced and sold as its own work a revision of Fox's public domain work. In doing so, he asserted, as an empirical matter, that consumers have little concern for who originated the intangible work embodied in the tangible copies that they consume: The consumer who buys a branded product does not automatically assume that the brand-name company is the same entity that came up with the idea for the product, or designed the product -and typically does not care whether it is. The words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers. 167 Justice Scalia admitted that in the case of "communicative products" such as novels or, as in Dastar, a video series, consumers may be interested "primarily" in who is the "creator of the content that the physical item conveys." 168 Yet he concluded that "according special treatment to communicative products" 169 would conflict with the fundamental and overriding principle that "[t]he right to copy, and to copy without attribution, once a copyright has expired" 170 properly "passes to the public." 171 Furthermore, "[r]eading 'origin' in § 43(a) [of the Lanham Act] to require attribution of uncopyrighted materials would pose serious practical problems," for when it is read to refer to intangible designs or communicative content, "the word 'origin' has no discernible limits." 172 Justice Scalia offered the example of the motion picture Carmen Jones, a video edition of which would require attribution, on ------------------------------------------------------------- 166 See Dastar, 539 U.S. at 25-27. The basic facts of Dastar are as follows: In the 1970s, Fox neglected to renew the copyright in its television documentary series entitled Crusade in Europe based on President Dwight D. Eisenhower's book of the same title, with the result that the television series fell into the public domain. Id. at 26. In 1995, Dastar began selling a video series entitled World War II Campaigns in Europe, which was a close adaptation -essentially, an abridgement -of Fox's previous series, but which nowhere credited Fox. Id. at 26-27. In the cause of action that the Supreme Court reviewed, Fox claimed that Dastar was engaging in "reverse passing off" -that is, that Dastar was passing off a product actually made by Fox as Dastar's own. Id. at 27 (internal quotation marks omitted). 167 Id. at 32-33. 168 Id. at 33. 169 Id. 170 Id. 171 Id. (quoting Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230 (1964)) (internal quotation mark omitted). 172 Id. at 35. Fox claimed that Dastar had violated the provisions of section 43(a)(1) of the Lanham Act by failing properly to attribute the true "origin" of the video series to Fox. See id. at 31. Fox's proposed reading of "origin," not just to MGM, but also to Hammerstein, Bizet, and Mérimée, if not others. 173 He concluded: "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries." 174 Dastar anticipates the austere, dispassionate sensibility of a world of universal printers, which is the sensibility of "commodity fetishism" 175 updated for a post-industrial age. Dastar implies that the utility of the work and its copies is intrinsic and absolute; their utility does not rely on the circumstances of their production or indeed their consumption. The imperative to copy overrides any concerns about history and authenticity. In any event, authenticity is ultimately unknowable; history has "no discernible limits." 176 The "source of the Nile" is neither the consumer's nor the law's concern, so long as it keeps on flowing. In Benjamin's Work of Art essay and Justice Scalia's Dastar opinion, then, we see prefigured the full consequences of the ideology of the copy. At the same time that it produces profound technological and economic progress, the imperative to copy and disseminate also continually disenchants "aura," both the aura of uniqueness and the aura of authenticity. This disenchantment conduces to the development of social structures in which distinction is not based on the consumption of unique or authentic objects, because uniqueness and authenticity are no longer tenable. The utopian endpoint of the ideology of the copy is a post-scarcity culture in which a "plurality of copies" are possessed by all who desire them, so that the possession of a copy may yield only absolute but not relative utility, in other words, so that the possession of a copy -as the term implies -may form no basis for distinction. We are calling upon intellectual property law now to counteract the social and cultural leveling that the law, in its progressive aspect, otherwise assumes to be a beneficial incident of technological and economic progress. Through sumptuary intellectual property law, we seek the means in essence to re-enchant copies, to render them as somehow unique or authentic. In this sense, while progressive intellectual property law is essentially modern in orientation, sumptuary intellectual property law is essentially anti-modern. In the form of antidilution protection, sumptuary intellectual property law seeks to preserve consumers' perception that certain copies, though they are merely copies, possess an aura of uniqueness. In the form of authenticity protection, ------------------------------------------------------------ sumptuary intellectual property law goes further. It provides the means to invest certain copies with the aura of authenticity on the basis that they are not copies but rather originals. I turn first to antidilution protection. The Venetian Senate was not the only legislative body to seek to ban new fashions in apparel or other demonstrable forms of consumption. In fact, nearly all past sumptuary regimes sought to do so. For example, an English proclamation of 1575 prohibited anyone from "devising any new forms of apparel," 177 while a century later, Charles II declared his "resolution of setting a fashion for clothes, which he will never alter." 178 In the interim, the Scottish Parliament did essentially the same. 179 But the prohibition of new fashion only made sense, to the extent that it made any sense at all, if existing fashions continued to do their differentiating work. Sumptuary law has thus generally consisted of two sets of prohibitions: prohibitions against new fashions and prohibitions against unauthorized uses of currently existing fashions. It is to modern forms of this second type of prohibition that I turn here, under the rubric of "dilution." Dilution is one of the most elusive concepts in all of intellectual property law, and also one of the most important -yet few give the concept its due. The concept is elusive because it is an essentially semiotic rather than economic or political concept, one that is concerned not so much with the construction of identity, which is relatively easy to understand, as with the construction of difference, which is not. The concept is important because an increasing number of intellectual property laws are taking on the characteristics of antidilution law. In an intensifying brand culture, it should not be surprising that trademark law is emerging as a net exporter of doctrinal inspiration. In what follows in this section, I first seek to define the phenomenon of dilution and then assess how various areas of intellectual property law have been adapted to serve as antidilution law. 1. The Legal and Cultural Concept of Dilution. -The U.S. trademark lawyer and scholar Frank Schechter first identified the phenomenon of trademark dilution in an enormously influential 1927 article in ------------------------------------------------------------ this journal entitled The Rational Basis for Trademark Protection, 180 which is still frequently cited by courts and commentators both in the United States and abroad. 181 There Schechter observed, quite rightly at the time, that U.S. trademark law only protected against consumer confusion as to source. 182 This presented a serious problem for owners of famous marks, who had no legal means to prevent others from attaching such famous marks to all manner of goods and services (such as "Tylenol snowboards, Netscape sex shops, and Harry Potter dry cleaners" 183 ) so long as consumers were not confused as to the true source of such goods. Schechter argued that such uses of a famous mark, if left unchecked, would result in the "gradual whittling away or dispersion" 184 of the distinctiveness of the mark in the marketplace: "If 'Kodak' may be used for bath tubs and cakes, 'Mazda' for cameras and shoes, or 'Ritz-Carlton' for coffee, these marks must inevitably be lost in the commonplace words of the language, despite the originality and ingenuity in their contrivance . . . ." 185 Drawing from German unfair competition case law, Schechter advocated for the development of antidilution protection, which would prevent any copying of qualifying marks regardless of whether that copying confused consumers as to source. 186 In doing so, Schechter nowhere spoke of the mark's connotations or associations with luxury or anything else -many of his examples of diluted trademarks were hardly high-status brands ("Odol" for mouth wash 187 ). Rather, he repeatedly emphasized that antidilution protection should be directed toward the "preservation of the uniqueness or individuality of the trademark," 188 its "singularity," 189 its "arresting uniqueness," 190 the degree to which "it is actually unique and different from other marks." 191 Schechter was concerned only with the preservation of the mark's formal distinctiveness, because he -------------------------------------------------------------recognized, as did others at the time, 192 that in an increasingly massified culture characterized by "dedifferentiation," 193 distinctiveness itself constituted value, or, in his terms, "selling power." 194 In formulating what was essentially a "need for uniqueness" 195 theory for trademarks, and by implication for consumers, Schechter's crucial insight was to recognize that certain forms of copying will damage the intellectual work itself and not simply the creator's incentives to create it. As noted above, intellectual property law conventionally assumes that intellectual works are nonrivalrous and inexhaustible. It thus prevents unauthorized copying solely to promote the creator's incentives to create the work, not to protect the utility of the work itself. Schechter observed that this conventional theoretical framework fails with respect to trademarks. It fails not simply because a defendant's unauthorized use of a trademark will impair the mark's ability reliably to identify the plaintiff, but also because a defendant's unauthorized use will otherwise dilute the uniqueness of the mark as a mark that only the plaintiff, and no one else, uses. In this sense, Schechter recognized that the utility of a trademark is in fact exhaustible and its use is in fact rivalrous. On this basis, Schechter came to the fairly startling conclusion that the true "rational basis for [trademark] protection" is the prevention of the dilutive copying of trademarks rather than the prevention of their substitutive copying, 196 because the former destroys their "selling power" 197 while the latter only confuses consumers -such was Schechter's devotion to trademarks. Given the peculiar characteristics of trademarks as compared to other forms of intellectual property, it makes sense that a trademark lawyer would have been the first to fasten upon the significance of the dilutive copying of intellectual property -and that he would have done so in the 1920s, when the mass production and mass promotion of consumer goods was becoming a pervasive reality in the industri- -------------------------------------------------------------alized economies of the West. 198 But in speaking only of trademark dilution, Schechter identified only one early symptom, albeit a prominent one, of the onset of what has arguably become a more general cultural condition, a condition that other areas of intellectual property law have since been enlisted to address. More broadly understood, dilution denotes the leveling process, akin to a kind of osmosis, by which our system of consumption-based distinction continually searches out, reproduces, and disseminates commodifiable forms of difference and thereby dissolves them into indifference, now at such a speed and with such a geographic reach as to threaten the very possibility of consumption-based distinction. Dilution denotes, in other words, the social and cultural consequences of the ideology of the copy. But where Benjamin saw "liquidation" as liberatory, Schechter saw uncontrolled dilution as potentially ruinous, as does much of intellectual property law currently. This is because dilutive copying may harm not merely trademarks but also copyrighted works (for example, novels, architectural works, musical compositions, or movies, the dilutive copying of which may impair their own uniqueness as well as their capacity to confer it on their consumers 199 ) and patented works (for example, biotechnology, software, or design patents, the dilutive copying of which may also impair their distinctiveness if not their owners' capacity to assert "sustainable differentiation" 200 ). But Schechter never spoke of the problem of dilutive copying in general, let alone of its cultural implications, and so fields of intellectual property law outside of trademark law have never fully assimilated his concept of dilution. Instead, they are in the process of reinventing it. 2. Trademark Law as Antidilution Law. -The irony is that the one area of intellectual property law that we would expect to perform the function of antidilution law, the very area of trademark law that we call "antidilution law," does no such thing. This has necessitated the development of other, indirect forms of antidilution protection in trademark law and elsewhere. 201 Before turning to these forms, I first consider the failure of trademark antidilution law to live up to its name. - ------------------------------------------------------------Since Schechter's time, trademark antidilution law has proved to be a dead letter both in the United States, as recent empirical work confirms, 202 as well as abroad. 203 This is largely due to the economistic turn in our understanding of this area of trademark doctrine. Most nations, including the United States, have codified some form of trademark antidilution law, 204 as has the European Union. 205 Yet the antidilution cause of action itself continues to meet with resistancebordering on nullification -by courts around the world. 206 There is a simple reason for this. Though we still dutifully cite to Schechter's 1926 article, trademark case law and commentary have transformed the concept of dilution from one based essentially on a theory of the fashion process to one based on a theory of "search costs." In an effort to fit the concept of dilution into an efficiency framework, we now -------------------------------------------------------------speak of dilution in terms of "blurring," 207 in which a defendant's use of a mark that is similar or identical to a plaintiff's mark is thought to "blur" the immediacy of the link between the plaintiff's mark and the plaintiff itself. This in turn is thought to require consumers to "think for a moment" 208 before linking the mark to the plaintiff, which increases consumers' "imagination cost[s]," 209 which is inefficient. Thus, a law that was originally designed to promote differentiation, both among branded goods and among the people who consume them, has been transformed into a law understood to promote identification of a brand with its goods. 210 This allows trademark theorists to maintain the fiction that trademarks yield only absolute utility, that they do no more than denote the source of the goods to which they are affixeda fiction that Schechter worked so hard to expose. But the result is that judges who might otherwise be willing to protect distinctiveness or uniqueness as something of social value (and we will see in a moment that they are certainly willing to do so) are instead hostile to the trademark antidilution cause of action because they see no harm worth enjoining in trivial increases in "internal search costs." 211 Ironically, then, the very theorists who have sought with the search costs rationale to offer a strong defense of the antidilution cause of action and the added property rights that it yields have instead largely buried it. 212 207 See, e.g., Moseley, 537 U.S. at 425 (internal quotation marks omitted). 208 Richard A. Posner, When Is Parody Fair Use?, 21 J. LEGAL STUD. 67, 75 (1992); see also Ty Inc. v. Perryman, 306 F.3d 509, 511 (7th Cir. 2002) (Posner, J.) (discussing the search costs rationale). 209 LANDES & POSNER, supra note 71, at 207 (internal quotation marks omitted). For a more persuasive account of dilution by blurring, but one that has not yet been adopted by courts, see Laura R. Bradford, Emotion, Dilution, and the Trademark Consumer, 23 BERKELEY TECH. L.J. 1227 (2008). 210 See, e.g., Louis Vuitton Malletier v. Dooney & Bourke, Inc., 340 F. Supp. 2d 415, 450-51 (S.D.N.Y. 2004) (giving "little, if any," id. at 451, weight to dilution survey that asked if defendant's conduct would lessen the "perceived distinctiveness, exclusivity, value and desirability," id. at 450, of the plaintiff's mark because, among other things, "desirability is unrelated to a mark's ability to identify and distinguish Louis Vuitton's handbags," id. at 450-51). 211 Rebecca Tushnet, Gone in Sixty Milliseconds: Trademark Law and Cognitive Science, 86 TEX. L. REV. 507, 509 (2008). Tushnet is highly critical of this concept. See id. at 527-46. 212 Tellingly, in Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991), in which the defendant produced Oscar statuette knockoffs for sale as motivational awards, the Ninth Circuit used antidilution doctrine to accomplish what was a clear sumptuary purpose, but it avoided referencing "blurring" when it did so. Instead, in reversing the district court's finding of no dilution, the Ninth Circuit cited Schechter's concept of "whittling away," id. at 1457 (internal quotation marks omitted), and spoke in general terms of the dilution of distinctiveness: [T]he Star Award is available to corporations, television stations, theater groups, and any member of the general public who desires to purchase one. If the Star Award looks cheap or shoddy, or is disseminated without regard to the ultimate recipient, the Oscar's Though the antidilution cause of action is itself a failure, courts have adapted other areas of trademark law to do the regulatory work that antidilution law was originally intended to do. In the process, they have made all the more explicit the social-theoretical foundations on which antidilution protection is built. This is most apparent in the various ways in which courts have expanded the basic anticonfusion cause of action (which seeks to prevent consumer confusion as to the true source of the defendant's goods) to prevent dilutive, rather than substitutive, copying. As one Canadian trial court forthrightly averred, in such cases "the real issue is not lost sales but rather the loss of reputation which will flow" 213 from diluting conduct. Consider, for example, the doctrine of post-sale confusion. This doctrine holds that even if consumers are not confused at the point of sale as to the true source of the goods that they are purchasing, other consumers may be confused as to the source of those goods after the sale. To take an example from recent Chinese case law, the buyer of knockoff Gucci shoes at the Shanghai No. 1 Yaohan Department Store is certainly not confused as to their true source, particularly since the shoes prominently bear the trademark "Senda" (a well-known Chinese shoe manufacturer) on the insole and are sold at a relatively moderate price from the "Senda" counter in the department store. Nevertheless, as the Chinese court explained: [W]hile the consumers are actually wearing the shoes, by-standers are unable to see the 'Senda-woman' label covered by the feet; but [Gucci's] double-G interlock pattern on the upper cloth can be recognized clearly, which would lead to the mistaken belief by third parties of the actual brand of the products bought by purchasers. This situation would undoubtedly reduce the value of the double-G interlock pattern trademark and affect its commending function. 214 Like the Chinese court, courts in the United States 215 and around the world 216 have increasingly held that this form of confusion, even in the -------------------------------------------------------------distinctive quality as a coveted symbol of excellence, which cannot be purchased from the Academy at any price, is threatened. minds of those who would never purchase Gucci shoes, is actionable, if only because the brand's reputation for exclusiveness is damaged. 217 Contrary to traditional trademark doctrine, courts here claim that "[t]he likelihood of confusion test concerns not only potential purchasers but also the general public" 218 -or indeed the "viewing public." 219 The courts' reasoning in such cases is quite revealing. Courts justify their prohibition against copying on the grounds that rarity and distinction should be promoted and preserved in light of the social functions that they play. In Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 220 for example, the Second Circuit enjoined the declaratory plaintiff from copying Levi's rear-pocket arcuate stitching pattern on the ground that Levi's "sales will be affected adversely by . . . buyers' ultimate realization that the pattern is no longer exclusive." 221 In Gucci America, Inc. v. Dart, Inc., 222 in which the defendant retailer was enjoined from selling knockoff Gucci watches, the court similarly noted the probability of an adverse impact on the producer's sales, in that consumers "will be discouraged from acquiring a genuine Gucci because the items have become too commonplace and no longer possess the prestige and status associated with them." 223 More impressively, in Ferrari S.P.A. Esercizio v. Roberts, 224 the Sixth Circuit spoke generally of the need to preserve the reputation for rarity of all automobiles that are perceived as rare. The court noted that "Ferrari intentionally lim-its production of its cars in order to create an image of exclusivity" 225 and "has gained a well-earned reputation for making uniquely designed automobiles of quality and rarity." 226 The court observed more generally that "[i]f the country is populated with hundreds, if not thousands, of replicas of rare, distinct, and unique vintage cars, obviously they are no longer unique." 227 (The dissent was left to point out that there was, at the time of the case, no antidilution cause of action available to the plaintiff, and that the majority had improperly and "expressly read[] such a cause of action into the [federal] statute." 228 ) Other courts have spoken of the harm to consumers of relative goods caused by "a proliferation of borrowings." 229 In Hermès International v. Lederer de Paris Fifth Avenue, Inc., 230 for example, the Second Circuit reasoned that "the purchaser of an original [luxury good] is harmed by the widespread existence of knockoffs because the high value of originals, which derives in part from their scarcity, is lessened." 231 Similarly, in General Motors Corp. v. Keystone Automotive Industries, 232 the Sixth Circuit enjoined the unauthorized manufacture of replacement front grills for GMC trucks in part because "the purchaser of an original may be harmed if the widespread existence of knockoffs decreases the original's value by making the previously scarce commonplace." 233 Notably, in Keystone, as in Lois Sportswear above, the brand whose reputation for rarity was being preserved was not a traditional luxury or high-status brand. On the contrary, and consonant with the often unappreciated realities of the fashion process, both Keystone's brand of pickup trucks and Lois Sportswear's brand of denim jeans have their origins in and derive their mystique from, of all places, labor. Trademark courts have also adapted the doctrine of "sponsorship confusion" to prevent dilutive copying of trademarks. In Schieffelin & Co. v. Jack Co. of Boca, 234 for example, the defendant John Calderaio developed "Dom Popingnon" bottled popcorn as a "burlesque of sorts" 235 on Dom Pérignon champagne, a product which, the court noted, is associated with "both scarcity and wealth" 236 and which "continues . . . to enjoy an image of scarcity, despite its wide distribution in American commerce." 237 The court considered it relevant also to note that "Calderaio was employed as a valet parker at the Boca Raton Hotel & Club, where he apparently developed a distaste for the condescension of the wealthy patrons of that establishment." 238 Though Calderaio stated that he conceived Dom Popingnon popcorn "for the purpose of casting ridicule upon the tastes and pretensions of Dom Pérignon purchasers," 239 this shanzhai 240 defense was unsuccessful. The court found consumer confusion as to source on the basis that consumers would believe that the plaintiff had "sponsored or otherwise approved" defendant's parody. 241 The Schieffelin court also considered the plaintiff's claim of dilution by blurring, but in a typical example of the degree to which the search costs theory of dilution has crippled the cause of action, the court quickly found no diminution of the "mark's product identification." 242 Other courts that have considered comparable burlesques of luxury goods have similarly adopted a sponsorship confusion approach. 243 Rather than resort to the rationale of preventing post-sale or sponsorship confusion, trademark courts will also enjoin a defendant's dilutive copying on vaguely reasoned theories of common law misappro- 235 Id. at 237. 236 Id. at 236. 237 Id. at 237. 238 Id. 239 Id. 240 See Adam Smith, Chinese Sham Glam: Innocuous Innovation or Mark-Owner Menace?, WORLD TRADEMARK REV. DAILY, Feb. 24, 2009 (explaining that shanzhai are parody products "diametrically opposed to fashion and brands" and are "about people turning their noses up to the government and IP owners" (quoting George Chan, IP consultant at Rouse & Co.) and that "where there is baoli (outlandish, dishonest profit) there is shanzhai" (quoting Lucy Nichols, Nokia director of global brand protection)). 241 Schieffelin, 850 F. Supp. at 242 (quoting Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204-05 (2d Cir. 1979)). The Schieffelin court credited survey evidence in which ten percent of those surveyed believed that the plaintiff was the source of Dom Popingnon popcorn and twenty-two percent believed that the defendant "required authorization" from the plaintiff to launch its product. Id. at 247. 242 Id. at 251 (citing Sally Gee, Inc., v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir. 1983)). 243 See, e.g., Bd. of Supervisors of La. State Univ. v. Smack Apparel Co., 438 F. Supp. 2d 653, 660 (E.D. La. 2006) (finding the defendant's novelty apparel items to be infringing); Grey v. Campbell Soup Co., 650 F. Supp. 1166, 1174-75 (C.D. Cal. 1986) (finding "Dogiva" and "Cativa" treats parodying Godiva chocolate to be infringing in part because the public was likely to be confused as to whether the defendant had Godiva's permission to use those names); Gucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977) (finding "Gucchi Goo" diaper bags to be infringing). But see, e.g., Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 268-69 (4th Cir. 2007) (finding "Chewy Vuitton" dog toy not to be infringing or diluting). priation or, in Europe, of the taking of "unfair advantage." 244 To the extent that these theories make little effort to ground themselves in any notion of search costs, they represent the clearest expression of courts' essentially normative commitment to policing the sumptuary code. An early and highly representative U.S. case in this regard involved the Atmos clock, a table clock that is wound solely by changes in atmospheric pressure. 245 The manufacturer of the Atmos clock sued a competitor that produced an electric-powered simulation of the clock. 246 Judge Jerome Frank was hardly an apologist for trademark law 247 or for the "[n]on-economic snobbish desires of consumers (of the kind analyzed by Veblen) and the satisfaction of their desires engendered by ignorance." 248 He nevertheless enjoined the simulation: [S]ome customers would buy plaintiff's cheaper clock for the purpose of acquiring the prestige gained by displaying what many visitors at the customers' homes would regard as a prestigious article. . . . Plaintiff's intention thus to reap financial benefits from poaching on the reputation of the Atmos clock is of major importance. 249 In a surprisingly persistent line of cases, all involving high-status goods, U.S. courts have since followed the reasoning of the Atmos clock case to hold that it is simply not fair for a person to acquire the prestige associated with a good -by using, for example, a product that "looks and sounds like the real thing" 250 -without paying the customary price. 251 European courts have ruled similarly, 252 most significantly in the recent landmark European Court of Justice (ECJ) case L'Oréal SA v. - ------------------------------------------------------------Bellure NV. 253 There, the defendants produced and sold "'downmarket' imitations" 254 of various L'Oréal perfumes in packaging similar to L'Oréal's. The English courts below properly emphasized that the plaintiffs asserted no exclusive rights in the actual smells of their perfumes. Thus, as the chancery judge put it in paraphrasing the testimony of a witness, the possibility of "[c]havs hanging about outside McDonalds smelling of fine fragrances" 255 was irrelevant -at least for the English courts -to the causes of action at issue. Instead, the case ultimately turned on the question of whether the defendants' look-alike packaging violated the terms of section 5(2) of the European Community's Trade Marks Directive, 256 which prohibits the taking of "unfair advantage of . . . the distinctive character or the repute" 257 of a trademark. The ECJ held that even if the defendants' packaging did not cause any confusion with or dilution of L'Oréal's marks, the defendants nevertheless took unfair advantage when they sought through their packaging to "benefit from the power of attraction, the reputation and the prestige" of L'Oréal's marks "without paying any financial compensation." 258 Though the ECJ took great pains to explain that it was bound by the factual findings below that there was no confusion or dilution, 259 its unfair advantage holding was essentially an antidilution holding by other means. If it did not seek directly to protect the "prestige" of L'Oréal's marks, the ECJ nevertheless sought to protect L'Oréal's incentives to produce marks with that characteristic. Thus, what the ECJ had taken away a year earlier in the antidilution case of Intel v. CPM, 260 which established a nearly impossible evidentiary requirement for a showing of blurring, 261 it gave back under an unfair advantage theory in L'Oréal v. Bellure. - ----------------------------------------------------------- ), http://curia. europa.eu/jcms/jcms/j_6 (enter "C-252/07" in "Case no" field and select "Search"). 261 Id. ¶ 77 ("[P]roof that the use of the later mark is or would be detrimental to the distinctive character of the earlier mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent on the use of the later mark, or a serious likelihood that such a change will occur in the future."). Earlier in its judgment, the ECJ stated that "detriment to the distinctive character of the earlier mark" is "also referred to as 'dilution,' 'whittling away' or 'blurring.'" Id. ¶ 29. The irony of trademark antidilution law -that we are accomplishing the goals of Schechter's original formulation in ways unanticipated, if not rejected by Schechter -continues in one other and final respect. In speaking of dilution by blurring, I have spoken so far of only one of the two modes of trademark dilution conventionally recognized in current trademark doctrine. The other is dilution by "tarnishment," a mode of dilution that plaintiffs have traditionally invoked to address conduct that links their marks "to products of shoddy quality" or portrays their marks "in an unwholesome or unsavory context likely to evoke unflattering thoughts" 262 about their marks. Standard examples of the latter form of tarnishment include defendants' use of marks in sexual, 263 vulgar, 264 or illicit contexts. 265 Because such conduct does not affect the formal uniqueness of the targeted mark, Schechter himself never spoke of tarnishment as a form of dilution, and various trademark scholars, 266 myself included, 267 have questioned whether tarnishment is a form of dilution for the same reason. Yet with the Trademark Dilution Revision Act of 2006, 268 the Lanham Act now explicitly provides relief for what it terms "dilution by tarnishment," 269 which it defines broadly as "association arising from the similarity between a mark or trade name and a famous mark that harms ------------------------------------------------------------ with comedy show that used crude language to be tarnishing of plaintiff's trademark). 265 See, e.g., PepsiCo, Inc. v. #1 Wholesale, LLC., No. 07-CV-367, 2007 WL 2142294, at *4 (N.D. Ga. July 20, 2007) (finding that defendant's modification of PepsiCo bottles, cans, and food canisters to allow the surreptitious storage of materials such as illegal drugs tarnished PepsiCo's trademarks); Coca-Cola Co. v. Alma-Leo U.S.A., Inc., 719 F. Supp. 725, 728 (N.D. Ill. 1989) (finding that defendant's sale of a Coca-Cola look-alike bottle containing white bubble gum powder resembling cocaine tarnished the plaintiff's trademarks). 266 See, e.g., Darling, supra note 203, at 63 ("Dilution is the harm that Schechter described in his 1927 paper, while tarnishment is a harm that seems to have gotten mixed into the dilution theory because of a misunderstanding of the separate parts of a trade-mark and because of poor use of language."); Robert N. Klieger Latent within the concept of tarnishment, as within these statutory definitions, has always been an extraordinarily capacious notion of harm to the "reputation" or "repute" of the trademark, one that is now taking shape as the most effective means toward reaching the ultimate ends that Schechter sought -so that the stone Schechter ignored may very well become the chief cornerstone of the cause of action he envisioned. 272 In L'Oréal v. Bellure, for example, the ECJ defined tarnishment as occurring when the defendant uses the plaintiff's trademark or a trademark similar to it in such a way that "the trade mark's power of attraction is reduced." 273 The Supreme Court of Canada articulated a comparable standard in its 2006 opinion in Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée. 274 There, the court addressed Canada's statutory trademark "depreciation" cause of action, which prohibits one party from using a mark "in a manner that is likely to have the effect of depreciating the value of the goodwill attaching" 275 to another party's mark. In expanding upon the statutory language, the court opined that a trademark's "value can be lowered in other ways [than disparagement], as by the lesser distinctiveness that results when a mark is bandied about by different users." 276 The Fourth Circuit, meanwhile, has recently stated that to establish tarnishment, the plaintiff merely "must show, in lieu of blurring, that [the defendant's use of its mark] harms the reputation of the [plaintiff's] mark." 277 On the basis of these statements, any uses of a trademark that reduce another mark's "selling power," lower the value of that mark's goodwill, or harm its reputation are potentially actionable as tarnishing uses. Such uses include, of course, dilutive copying that tarnishes the mark's reputation for uniqueness, regardless of whether that copying takes the form of "shoddy" copies, and regardless of whether that copying places the targeted mark in an "unwholesome or unsavory context." And where the plaintiff lacks persuasive evidence -as it -------------------------------------------------------------almost always seems to do -that the defendant's mark has blurred the link between the plaintiff's mark and its source, the plaintiff may nevertheless contend that the defendant's mark tarnishes the reputation of the plaintiff's mark as being a mark that is used by one, or a few, sources and no others. The irony here is that, on this logic, while tarnishing conduct (such as placing the mark in an "unsavory context") does not necessarily dilute the uniqueness of the mark, the dilution of the uniqueness of the mark necessarily tarnishes it; and because tarnishment is now explicitly referenced in the U.S. statute as elsewhere, the form of protection that Schechter originally envisioned is now available, mirabile dictu, at the federal level. As with so much else in modern trademark law, if not in modern intellectual property law more generally, tarnishment doctrine is shifting from substance to form, from protecting and promoting the substantive meaning of the mark, to the extent that it has any, to protecting and promoting, more abstractly, the mark's formal "differential distinctiveness." 278 Trademark law's expanding role as a modern form of sumptuary law has arguably precipitated this shift. 3. Copyright Law as Antidilution Law. -Our conventional view of copyright law does not admit of the possibility of dilutive copying of copyrightable expression. 279 On the contrary, it subscribes to all of the assumptions of the ideology of the copy described above: that copyrightable works are inexhaustible and nonrivalrous in consumption and that their utility, relative or otherwise, need not be protected once the works have been created. Set against these assumptions, the idea that the copying of a copyrighted work should be restricted in order to preserve the work's utility would seem ridiculous. Indeed, it runs contrary to the whole point of copyright law, which is to "promote the Progress" by limiting copying in the near term so that we will enjoy more copying, as much as possible, in the long term. Yet notwithstanding this conventional, progressive view of copyright law, the practice of copyright law shows that courts are in fact quite sensitive to the rivalrousness of copyrighted works and to the depletability, specifically, of their relative utility. Courts commonly use copyright law to protect the "uniqueness and originality" 280 of ------------------------------------------------------------ finding of a likelihood of irreparable harm in light of plaintiff's claim that its copyrighted work "will suffer from a loss of uniqueness in the marketplace" as a result of defendant's allegedly infringing conduct (quoting Autoskill, Inc. v. Nat'l Educ. Support Sys. Inc., 793 F. Supp. 1557, 1572 (D.N.M. 1992)) (internal quotation marks omitted)); Bestland v. Smith, No. plaintiffs' works from "overexposure," 281 "market saturation," 282 and tarnishment. 283 For example, in Engel v. Wild Oats, Inc., 284 a case involving the reproduction on T-shirts of a photograph of Central Park, the court noted quite explicitly that "[t]he nature of plaintiff's copyright -ownership of a rarefied, artistic subject matter -is unusually susceptible to damage when reproduced on the rather less rarefied medium of a T-shirt or sweat shirt." 285 As the Seventh Circuit's Beanie Babies cases 286 suggest, the courts' primary concern in such cases is not to incentivize the further creation of absolute utility, but, in an almost retroactive manner, to preserve the relative utility of what has already been created. Ty, Inc., the manufacturer of Beanie Babies stuffed animals, engages in a marketing strategy that one Northern District of Illinois court characterized as the "shrewd business practice of creating a shortage in order to excite the market" 287 and another characterized as "empty shelves -the deliberate creation of scarcity, which pumps up word-of-mouth demand to a frenzied level." 288 In an effort to prevent the production of various knockoffs of its copyrighted stuffed animal designs, Ty urged the courts to preserve the perception that its designs are "unique" 289 and thereby protect the "inherent value of Ty's copyrights themselves." 290 The courts -------------------------------------------------------------obliged. 291 Here, remarkably, the substantial similarity inquiry was essentially an antidilution inquiry, in which the harm was not so much that consumers would buy the defendants' products rather than the plaintiff's, but that the plaintiff's products, in losing their distinctiveness in the marketplace, would also lose whatever utility they had to offer. 292 This concern for the rarity of the plaintiff's work is apparent elsewhere in copyright doctrine. As traditionally construed, factor four of the statutorily prescribed test for copyright fair use instructs courts to consider, among other things, what impact the defendant's unauthorized use would have on the market for the plaintiff's work if that use were to become "widespread." 293 Though courts have typically applied this slippery slope doctrine to prevent even small-scale substitution, they have also used it to address trademark-like concerns about a dilutive "proliferation of borrowings," particularly in cases involving works embodied in "limited editions." 294 Similarly, in assessing damages in copyright infringement cases, courts have adopted antidilution reasoning with respect to the plaintiff's loss of goodwill and damage to its reputation caused by the "availability and prevalence" 295 of copies of the plaintiff's work. 296 For example, in Harolds Stores, Inc. v. Dillard Department Stores, Inc., 297 in which Dillard copied Harold's Stores' printed skirt designs, the Tenth Circuit admitted survey evidence showing the damage to Harold's Stores' reputation caused by its customers' realization that the printed skirt designs that "they thought were unique to Harold's" were in fact available elsewhere. 298 Finally, as William Landes and Richard Posner suggest, the prohibition against unauthorized production of derivative works functions to prevent, among other things, potential congestion externalities associated with multiple competing derivatives of a preexisting work. 299 Admittedly, the great majority of copyright cases continue to operate according to the conventional progressive view that copyright law does no more than prohibit the unauthorized substitutive copying of intangible forms of absolute utility in order to promote their creation. -------------------------------------------------------------The copyright dilution case law remains in the minority. Yet its influence is growing. Consider the oft-noted expansion in the scope of copyright protection, and in particular in the scope of substantial similarity. Like the notion of post-sale confusion in trademark law, the "total concept and feel" test for substantial similarity is arguably little more than a means to expand the scope of infringement to include copying that, while perhaps not fully substitutive in nature, is nevertheless dilutive of the distinctive style or "aesthetic appeal" 300 of the plaintiff's work. 301 As in the rest of copyright antidilution law, such an approach ultimately turns progressive copyright law on its head. In an effort to preserve relative utility, courts end up limiting the further production of absolute utility. -Antidilution thinking has also spread to three-dimensional design protection law, both the design patent law we currently have on the books, 302 which I address very briefly here, and the apparel design protection proposals being considered by Congress and likely at some point to become law, 303 which I address at greater length. Though they are rarely recognized as such, both of these are essentially antidilution laws. Like their counterparts abroad, 304 they explicitly limit the subject matter of their protection to product designs that are "attractive or distinctive in appearance," 305 and their primary purpose is to incentivize the creation of this distinctiveness and ensure that it is maintained. Indeed, they are probably the clearest examples we have of the "functional transformation" of intellectual property law into a body of law being used not simply to "promote the Progress," but also, and in tension with that goal, to preserve our system of consumption-based differentiation in the face of copying technology that threatens to undermine it. Consider, first, design patent law. Patent law commentary tends to focus exclusively on utility patent law, where, to be sure, the "patent ------------------------------------------------------------ paradox" 306 and "patent portfolio races" 307 have many characteristics of a zero-sum struggle, and where utility patents themselves serve as status symbols for inventors or firms in a variety of ways. 308 Unsurprisingly, the fashion process operates in the utility patent world as much as it does anywhere else. Yet for all of our attention to utility patents, recent years have witnessed a surge in the annual number of registrations of design patents at the U.S. Patent and Trademark Office and other patent offices around the world, a run-up far outpacing the increase in registrations of utility patents. 309 The reason for this becomes clear in design patent doctrine, which has much in common with trademark doctrine, so much so that cases have been remanded or reversed because the lower court confused the two areas' tests for protectability (both of which arguably involve an analysis of distinctiveness) 310 or infringement (both of which involve an analysis of consumer confusion). 311 Courts recognize that firms file for design patent protection "for the purpose of protecting the uniqueness of [their] designs" 312 as well as to protect, more generally, the firm's "reputation for innovation or uniqueness." 313 Design patents have proved to be especially important in the high-technology consumer goods sector because such high-technology is not often clearly demonstrable except through the goods' outer appearance, which is frequently the target ------------------------------------------------------------- 308 See Mark A. Lemley, Essay, Rational Ignorance at the Patent Office, 95 NW. U. L. REV. 1495, 1506 (2001) ("Established companies may patent out of inertia, to maintain a reputation as a market leader, or simply for the marquee value of selling a product with 'patented technology.'"). 309 See, e.g., U.S. PATENT AND TRADEMARK OFFICE, PERFORMANCE AND ACCOUNTA-BILITY REPORT, FISCAL YEAR 2008, at 119 tbl.6 (2008) (showing a sixty-eight percent increase in design patent registrations as against an eight percent increase in utility patent registrations for the ten-year period 1999 to 2008). 310 See, e.g., In re Klein by Klein, 987 F.2d 1569, 1574-75 (Fed. Cir. 1993) (finding that the trademark examiner "applied an erroneous standard of patentability which he referred to as 'distinctiveness,'" id. at 1574, and reversing the Trademark Trial and Appeal Board's affirmance of the examiner's rejection of the design). 311 of copyists. 314 Design patents enable the designers of such products to convert the absolute utility that they have created into clearly demonstrable (and protectable) forms of relative utility, which may be the primary form of utility that high-technology consumers ultimately desire. 315 But by far the most striking example of the sumptuary turn in intellectual property law, and the one with which I conclude this section, comes to us in the form of antidilution controls on the reproduction of apparel designs, including designs of clothing, bags, belts, and eyeglass frames. 316 While the U.S. design patent system will protect the designs of such articles, provided that the designs meet the requirements of novelty and nonobviousness, its registration process is seen to be too slow to keep pace with the rapid changes in apparel fashion. 317 Apparel designers, who have long enjoyed sui generis protection elsewhere, 318 have thus repeatedly sought such protection in the United States. 319 There are a variety of explanations, some controversial, for why their efforts have so far failed. 320 But what has recently added great urgency -and persuasive force -to their efforts is the emergence in the apparel manufacturing industry of exceptionally powerful copying practices of the kind described in section I.C. 321 As Professor Susan Scafidi testified to Congress, "high-quality digital photos of a runway look can be uploaded to the internet and sent to copyists anywhere in the world even before the show is finished, and knockoffs can be offered for sale within days -long before the original garments are scheduled to appear in stores." 322 Of course, the apparel design indus- -------------------------------------------------------------try has complained for decades, if not centuries, about the production of knockoffs, but the difference now is that legitimate copiers no longer enjoy any significant period in which to exploit their first-mover advantage, and to the extent that they may once have enjoyed an effective monopoly over certain manufacturing practices or materials, advances in copying technology are eroding that advantage as well. Of all the media of distinction in the modern marketplace, apparel fashion is undoubtedly the most potent. It is also undoubtedly the most exposed to the threat of mimetic technology. Placing itself squarely within the tradition of the incentives-based theory of intellectual property protection, the apparel design industry thus asserts that in light of the new copying practices arrayed against it, it will not be able to continue to innovate new designs unless those designs are guaranteed some form of legal protection. Unless designers can profit from their innovations, the industry asserts, the "Progress" of fashion will come to a halt. In an important recent article, Professors Kal Raustiala and Chris Sprigman argue that the industry has gotten this exactly wrong. 323 They contend that "copying fails to deter innovation in the fashion industry because, counter-intuitively, copying is not very harmful to originators. . . . [C]opying functions as an important element of -and perhaps even a necessary predicate to -the apparel industry's swift cycle of innovation." 324 The industry's reaction to this argument has been mixed, 325 but at least Raustiala and Sprigman have acceded to the industry's initial framing of the debate. While Raustiala and Sprigman are certainly correct that copying causes the churning of apparel designs, it is far from clear to what extent this churning is evidence of "innovation" in a fashion process that is notoriously cyclical and renovative. Indeed, one could assert that the industry spins its wheels to the extent that it does because it lacks strong intellectual property protection. The larger point is that it is crucial to set aside the canard that the apparel design industry pursues "Progress," if by progress we mean the innovation of absolute utility, be it aesthetic or functional in form. For what the industry has long supplied is not so much absolute utility as relative utility, not so much beauty as distinction -and as generations of fashion critics have observed (including some quoted, to their credit, by Raustiala and Sprigman 326 ), fashions are not distinctive because ------------------------------------------------------------ 324 Id. at 1691. 325 See Emili Vesilind, The New Pirates, L.A. TIMES, Nov. 11, 2007, at P6. 326 See, e.g., Raustiala & Sprigman, supra note 323, at 1726-27 (quoting Thorstein Veblen's observation that new fashions are "intrinsically ugly" and produce "aesthetic nausea" that drives the fashion process (internal quotation marks omitted)). they are beautiful; they are beautiful because they are distinctive. 327 The purpose of the avant-garde fashion show, as of other forms of advertising, is to generate this distinction so that it may then be commodified in the form of high-margin and considerably less avant-garde merchandise, particularly handbags and perfume. The industry as a whole has been exceedingly successful in this enterprise of commercial persuasion, and not just with respect to consumers generally, but also with respect to those consumers who are also policymakers. Thus, the Copyright Office speaks before Congress of the importance of preventing third parties from "undercutting the market for a hot new fashion design." 328 Meanwhile, congressmen go to great lengths to portray themselves as fashionless everymen -"My wife just made me go see 'The Devil Wears Prada.' . . . That fully exhausts my knowledge of the fashion industry . . . ." 329 -who are nevertheless sympathetic to the industry, and one has invoked the Soviet Union: "[L]et's be honest, [fashion is] art. Otherwise, we would all be wearing something that looks like the Russians wore during the Soviet period or worse." 330 A child of the ancien régime 331 but finally brought into its own by modern advertising, the apparel fashion industry perpetuates more effectively than any other our sumptuary code of consumption-based social distinction. 332 It is, in this sense, an intensely reactionary industry. The proposed apparel design protection legislation is better understood, then, as sumptuary rather than progressive intellectual property ------------------------------------------------------------- 327 Cf. JEAN BAUDRILLARD, SYMBOLIC EXCHANGE AND DEATH 94 (Ian Hamilton Grant trans., 1993) (1976) ("In contradistinction to language, which aims at communication, fashion plays at it, turning it into the goal-less stake of a signification without a message. Hence its aesthetic pleasure, which has nothing to do with beauty or ugliness."). 328 Hearing on H.R. 5055, supra note 133, at 210 (statement of the United States Copyright Office). 329 Stony Apparel) ("The availability of inexpensive but fashionable clothing allows every American to feel worthy, hip, and stylish. . . . But if this bill passes, we could see a future where only the wealthy will look up to date. This legislation threatens to split America into two classes of people: those with money who can buy copyrighted designs, and those who can't afford them."), with Hearing on H.R. 5055, supra note 133, at 10 (statement of Jeffrey Banks, Fashion Designer) ("The wealthy will still be able to buy the designs originating out of Europe and Japan, where protection exists. The rest of America will be left buying the cheap knockoffs from Europe. I urge you to pass this important legislation."). law. Unlike progressive intellectual property protections, its primary purpose is not to prevent substitutive copying. It is well recognized that high-end fashion designers are hardly losing a sale when a lowincome purchaser buys an inexpensive knockoff of a $2000 handbag, and to the extent that such designers tend, like Ty, deliberately to restrict the number of pieces that they produce, they are hardly losing a sale when a high-income purchaser removes herself from the waitlist for a product to buy a knockoff of it either. This is why the counterfeiting of relative goods is so often said to be a "victimless crime." 333 Rather, the primary purpose of apparel design protection is to prevent dilutive copying. The victims of such copying are all those who rely on the sumptuary code to differentiate their products, themselves, and the world around them, and whose production and consumption of relative utility is impaired by overcopying. 334 This has proved to be a much more difficult harm to describe in the U.S. Congress, particularly when the legitimate victims may be cast as those who have the ability and willingness to pay $2000 for an authentic handbag, and the illegitimate victims, rarely mentioned, are those who have already bought a fake. The apparel design debate ultimately reveals a larger truth about industries engaged, as most now are, in the production of commodified forms of distinction. This is that such industries benefit from dilutive copying -indeed, they encourage it -but only if they can plan and control the process of dilution. In apparel design firms' traditional business model, they themselves manage and profit from the staged dilution of their designs' distinctiveness by gradually trickling down their haute couture designs -or perhaps more accurately, the brand built up by those designs -to various levels of ready-to-wear and -------------------------------------------------------------333 See Dana Thomas, Terror's Purse Strings, N.Y. TIMES, Aug. 30, 2007, at A23 ("Most people think that buying an imitation handbag or wallet is harmless, a victimless crime."); see also John Tagliabue, Fakes Blot a Nation's Good Names, N.Y. TIMES, July 3, 1997, at D1 (reporting that the Italian public "tends to view counterfeiters as modern-day Robin Hoods"). 334 In the recent seminal case of Review Australia Pty Ltd v. Innovative Lifestyle Investments Pty Ltd (2008) 166 F.C.R. 358, the Federal Court of Australia explicitly recognized this aspect of apparel design protection. The court found that the defendants' production and sale of knockoffs of the plaintiff's dress designs did not constitute substitutive copying: "In the circumstances, I could not conclude that it was probable that a consumer who bought the [defendants'] dress would, if that dress had been unavailable, have bought the [plaintiff's] dress instead." Id. at 365. Rather, the harm entailed "dilution": If garments bearing a substantial similarity to those of the [plaintiff] started to appear in other outlets and under other brands, the consumer's perception of the originality of the [plaintiff's] designs would necessarily be weakened. In an extreme case, the consumer's perception may be that the [plaintiff's] garments were nothing very special at all . . . . I could not, of course, find that the present was anything like an extreme case, but I am prepared to find, on the probabilities, that the market presence of the [defendants'] dress did bring about some minor dilution of the [plaintiff's] reputation for originality. Id. at 367. merchandise. Formerly, such industries could rely on natural limits on dilution; technology was incapable of rapidly reproducing persuasive copies of their clothing designs or merchandise. But now this is no longer the case. Copying technology threatens to overwhelm the logic of the fashion process. As the apparel designer Nicole Miller has candidly put it, new copying practices "make[] the trends end too fast . . . . There's so much copying that people throw away their clothes because they don't have any value anymore. It ruins the whole thing." 335 Rapid copying threatens, more generally, to induce in consumers an ever more blasé reaction to the quickening procession of commodified distinctions presented to them, with the risk that they might abandon the zero-sum game altogether, that their "hip consumerism" might transform into anticonsumerism. The role of antidilution law, as much in trademark and copyright as in three-dimensional design law, is to prevent this "ruin" from occurring. Its role is not so much to prohibit dilution as to facilitate it in an orderly and profitable -and socially reactionary -manner. In this important sense, sumptuary intellectual property law is essentially continuous with the history of early modern sumptuary law, which never sought to eliminate luxury consumption, but rather sought to govern it and ensure that it performed its intended social function. 336 Whether modern sumptuary intellectual property law will prove to be successful in performing this regulatory role is a question that I consider in Part III. First, however, I turn to a second mode of intellectual property protection that is also proving to be useful in countering the social implications of copying technology. A common -and probably valid -criticism of Benjamin's Work of Art essay is that it failed to recognize one important consequence of the emergence of mimetic technology: in producing ever more copies, "mechanical reproduction" only amplifies all the more the distinctive "aura" of those things that are perceived not as mechanically reproduced copies, but rather as authentic originals. 337 Producers, in con- -------------------------------------------------------------335 Eric Wilson, The Knockoff Won't Be Knocked Off, N.Y. TIMES, Sept. 9, 2007, at WK 5 (quoting apparel designer Nicole Miller). Hemphill and Suk explain the underlying logic: "If copying increases, and hence the fashion lifespan of the item falls, a consumer will recognize that fact and lower her willingness to pay." Hemphill & Suk, supra note 38, at 1183. 336 See KILLERBY, supra note 2, at 91 ("Luxury performed many useful functions within the city and it was precisely because of its symbolic importance that legislators were concerned to ensure the strict regulation of its use."). 337 SCHWARTZ, supra note 27, at 141 ("What withers in the age of mechanical reproduction is not the aura . . . of works of art but the assurance of our own liveliness. . . . Only in a culture of the copy do we assign such motive force to the Original."). Benjamin did recognize that mechanical reproduction significantly contributed to the creation of the category of the authentic, see BENJAMIN, supra note 158, at 243 n.2, but in Part IV of his Work of Art essay, he still retains the trast, have long recognized this and responded accordingly. 338 Of course, most producers can promote their goods as being "original" in the sense that the goods originate from the same source as that which originally designed them or as being "authentic" in the sense that the goods are authorized copies. But one category of producers has been especially aggressive in asserting what has lately become an exceptionally distinctive form of authenticity: the authenticity of geographical place and historical time. European winemakers, for example, extol the mysterious "terroir" 339 that expresses itself in their wines. Indigenous producers of traditional cultural expressions, such as Australian Aboriginal artists, insist that their work cannot be created or understood apart from the land and the history that gives rise to it. 340 And comically, mined diamond producers now stress that organic diamonds are "billions of years in the making," 341 and that "[a]dding to the mystery and aura of what make diamonds so sought-after" is the fact that "approximately 250 tons of ore must be mined and processed in order to produce a single, one carat, polished, gem-quality diamond." 342 In what has become a central element of European agricultural policy across a wide range of goods, and an emerging element of international development policy as well, traditional producers seek to "defetishize" 343 their goods by emphasizing the precise geographical, historical, and human circumstances of their goods' manufacture. Through the commodification of what are essentially forms of pre-or anti-modernity, 344 traditional producers seek to sell the distinction of terroir, history, and legend to a world that has otherwise been deterritorialized, dehistoricized, and disenchanted. In Marc Augé's terms, they are selling "place" to a global population of consumers who otherwise know nothing but "non-places," 345 or in more American terms, they are selling Norman Rockwell to the world of Edward Hopperand of Dastar. The problem, however, is that mimetic technology can now persuasively -and legally -simulate the material characteristics of most geographically and historically authentic goods, with the result that these material characteristics no longer reliably signal authenticity. Having lost control over the production of material signals of authenticity, traditional producers have therefore turned to forms of intellectual property, such as geographical indications, to establish legal control over the production of immaterial signals of authenticity. Stated more essentially, for all of their talk of terroir, traditional producers are engaging in what has become a quintessential post-industrial strategy: they are calling upon intellectual property law to facilitate the production of immaterial scarcities that may perform the social function that material scarcities once performed. In this section, I consider two examples of traditional producers' efforts to bend intellectual property law toward their particular sumptuary ends. The first involves the protection of geographical indications (for example, Champagne or Burgundy), which identify the geographic origin of a good where "a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin." 346 The second involves the protection of indigenous aesthetic and sacred expression (for example, Native American or Maori graphic expression), also known as "traditional cultural expressions" (TCEs). Both forms of intellectual property protection reject every aspect of the ideology of the copy that Dastar and the progressive side of intellectual property law espouse, and are now appealing to intellectual property law, at least in its role as authenticity law, to do the same. 1. Geographical Indications Protection. -The European wine industry is currently in a state of crisis. 347 With the rise, most notably, of New World wines, Europe faces in the near future the very real possibility of becoming a net importer of wine. 348 Among the many prob- ------------------------------------------------------------ lems facing the industry, one may appear to be of relatively minor importance: the problem of the use by non-Europeans of traditional European terms to describe wines not originating in Europe (for example, Californian "champagne" or Australian "sparkling burgundy"). This practice has long been a source of frustration for European winemakers, who consider it to be something on the order of sacrilege for New World winemakers, now using New World techniques, to describe their "laboratory" 349 wines with traditional European terms. European winemaking countries and the European Union have therefore aggressively sought to build into trade agreements various regimes of intellectual property protection that will end this practice. Thus, strangely, while U.S. trade negotiators seek intellectual property regimes that will further their country's comparative advantages in such "Third Wave" economic sectors as information technology, biotechnology, and entertainment, 350 European negotiators focus here on decidedly "First Wave" agricultural products. But the Europeans are making a bet, and probably a very good one. They are betting that Dastar is wrong. They are betting that in a culture of copies, consumers care about "the source of the Nile and all its tributaries" and will pay a premium for geographically and historically authentic goods, not because of their absolute utility, which copies yield equally well, but because of their unique form of relative utility, which, based as it is on spatio-temporal authenticity, simply cannot be copied. (a) TRIPS Article 23. -A good example of European trade negotiators' success in gaining special protection for geographical indications is found in the main geographical indications provisions of the World Trade Organization (WTO) Trade-Related Aspects of International Property Rights (TRIPS) Agreement: Articles 22 and 23. 351 The two Articles pursue very different approaches to the intellectual property subject matter that they protect. Article 22 of TRIPS establishes a very conventional form of protection for designations of source. Typically, we protect a designation of source from unauthorized uses only if consumers actually perceive the designation to be distinctive of source and only if the unauthorized uses are shown to confuse consumers as to source or otherwise to dilute the distinctiveness of the designation of source. We thereby con- ------------------------------------------------------------ form the form and extent of protection to the benefits that such protection yields, including the minimization of consumer search costs and the encouragement of consistent levels of product quality, and to the costs that such protection imposes, including the constriction of the public domain. In this tradition, Article 22.2(a) specifies that WTO members shall provide remedies to prevent "the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good." 352 This language allows WTO members to require a showing of consumer confusion as to source. 353 Article 22 of TRIPS restates perfectly conventional and progressive intellectual property law. But Article 23 of TRIPS, which applies exclusively to geographical indications for wines and spirits, is an altogether different matter. Its purpose is not to minimize consumer search costs or encourage consistent levels of product quality, and to the extent that it necessitated significant changes in national intellectual property and labeling laws around the world, it is far from conventional intellectual property law. Rather, its purpose is to help traditional producers of wines and spirits to promote the authenticity of their products by establishing an absolute prohibition, the violation of which occurs as a per se matter, against the use of traditional terms by any other producers of wines and spirits. Article 23 specifies that WTO members must provide remedies to prevent the use of geographical indications on wines and spirits not originating from the place indicated by the geographical indication "even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as 'kind', 'type', 'style', 'imitation' or the like." 354 The practical effect of Article 23 is that a California winemaker may not label her wine as, for example, "Sancerre-Style California White Wine" or "Tastes like Sancerre" even if the winemaker can show that its use of the term "Sancerre" does not confuse consumers as to the true geographical source of the wine or otherwise does not dilute the distinctiveness of the term "Sancerre." 355 This deliberate limitation on the kind of information that can be conveyed to consumers very likely increases their search costs at the same time that it enhances the "selling power" of the protected terms. - ----------------------------------------------------------- -From the perspective of the public domain, freedom of commercial speech, and the goals of progressive intellectual property law, the terms of Article 23 are dismaying. But they actually appear quite reasonable compared to what followed. Article 23 represented an important win for European trade negotiators, but it had two fundamental limitations: first, its heightened level of protection applied only to wines and spirits, and second, a grandfather clause allowed nontraditional producers to continue to use traditional terms so long as they had done so for at least ten years or otherwise in good faith prior to 1994. 356 To overcome this first limitation, European countries have used the current Doha Round of WTO negotiations to call for the extension of the terms of Article 23 to all geographical goods, but have met so far with no success. 357 They have met with much more success, however, in their efforts, primarily bilateral in nature, to overcome the second limitation. In 2003, the European Commission issued what came to be known as its "clawback list" of forty-one terms -such as Chablis, Chianti, Cognac, Ouzo, Gorgonzola, and Roquefort -for which it would seek worldwide exclusive rights, regardless of whether these terms had become generic in meaning in the various countries in which they were used and regardless of whether the wine and spirit designations among them qualified for the grandfather provision of TRIPS. 358 The culmination of the clawback strategy, at least with respect to wine and spirit designations, was the remarkable, if little noticed, U.S.-E.C. Wine Agreement of 2006. 359 The core of this agreement consists of an exchange of trade rights for language rights. For its part, the European Union agreed, inter alia, to allow the sale within the common market of U.S. wines made through various nontraditional methods that European winemakers are themselves generally not allowed to use. 360 In return, the United -------------------------------------------------------------States agreed to "seek to change the legal status" 361 in the United States of various wine-related geographic indications that the Europeans either included in their clawback list or otherwise sought to control. 362 The United States also agreed to give European winemakers exclusive rights to use in the U.S. market an exhaustive list, amounting to fifty annexed pages, of other regional and traditional European winemaking terms. 363 Importantly, as with Article 23, these rights, unlimited in term, impose an absolute prohibition on those who do not possess them: non-European winemakers may not use the listed terms in any way in the U.S. market even if their use does not confuse consumers as to the true source of the wine or otherwise dilute the distinctiveness of the terms. 364 And as with Article 23, this prohibition may actually work to increase consumer search costs, particularly in light of the fact that the United States agreed to push its wine producers toward phasing out their usage of seventeen terms, such as "sherry" or "chablis," that qualified for the grandfather provisions of the TRIPS Agreement and on which U.S. consumers had come to rely as describing goods originating as much in the United States as anywhere else. This may appear to be a strange and possibly imbalanced bargain: the significant lowering of trade barriers in exchange for little more than property rights in various traditional expressions. But both sides knew that much more fundamental issues were at stake, which may explain why it took them two decades to reach agreement. 365 With the U.S.-E.C. Wine Agreement, the battle lines have been drawn: New World technology versus Old World terroir, "mechanical reproduction" versus the "domain of tradition," American copies versus European originals. Over time, the Americans will no doubt develop their own geographical and historical claims to authenticity while the Europeans will no doubt relent on their controls on their own winemaking practices (indeed, both processes have already begun 366 ), but each side is -------------------------------------------------------------the Trade in Wine, 29 HOUS. J. INT'L L. 731, 756 (2007) (characterizing bilateral negotiations between the United States and the European Community over trade in wine as "marked by aggressive bargaining tactics and an unwillingness to find a middle ground"). 361 nevertheless betting that its core competitive advantage will overcome the other's. Lost in the crossfire are the conventional goals of progressive intellectual property law with respect to designations of source. 2. Traditional Cultural Expressions Protection. -I conclude this section with a consideration of current and proposed forms of intellectual property protection for traditional cultural expressions (TCEs). It is appropriate to do so because TCEs protection represents the most ambitious -and reactionary -form of sumptuary intellectual property law that we have. In a strange microcosm of the larger processes that this Article seeks to identify, indigenous communities are attempting to preserve social stability by elevating their own sumptuary law with respect to their intellectual works to a global norm. As the various international instruments and national laws dedicated to the protection of TCEs attest, 367 TCEs possess in quintessential form the typical characteristics of the subject matter of modern sumptuary intellectual property law. First, TCEs are forms of difference, of exceptionalism. By definition, they are "characteristic" of the communities that have created them; 368 to the extent that they are not distinctive of their originating communities, they do not qualify as TCEs. 369 Second, the distinctiveness of TCEs has attracted a flood of dilutive copying. 370 Modern consumer societies have come to venerate indigenous works as "icons of primordial integrity, of meaning unin- 368 See, e.g., Revised Objectives and Principles, supra note 367, Annex at 13 ("[T]he term 'characteristic' is intended to convey notions of 'authenticity' or that the protected expressions are 'genuine,' 'pertain to' or [are] an 'attribute of' a particular people or community."). 369 See, e.g., Model Provisions, supra note 367, ¶ 36 ("'Characteristic elements' of the traditional artistic heritage, of which the production must consist in order to qualify as a protected 'expression of folklore,' means in the given context that the element must be generally recognized as representing a distinct traditional heritage of a community."). 370 See, e.g., id. ¶ ¶ 1-4. flected by imitation." 371 Our characteristic method of veneration, however, is to imitate these works and assimilate them to copies. 372 This has proved disastrous for TCEs, whose peculiar form of rivalrousness and exhaustibility makes them especially susceptible to dilution. As Michael Brown has written, indigenous communities typically view sacred knowledge in particular "as a limited good that cannot properly exist in several places at once. Religious knowledge that resides in inappropriate places may find its power diminished or dangerously distorted . . . ." 373 Brown cites the example of the Zia Pueblo of the State of New Mexico, who continue to assert that the sacred power of their sun symbol is being diluted by the state's use of it on the state flag, license plates, and in other profane contexts, 374 which is "at least an affront to [the Zia's] dignity, at worst a dangerous form of blasphemy capable of unleashing genuine misfortune." 375 Australian courts have been especially sensitive to the damage that unauthorized copying can inflict on TCEs themselves. In its seminal 1994 opinion in Milpurrurru v. Indofurn Pty Ltd, 376 for example, the Australian Federal Court recognized that Aboriginal artists are obligated to take action against unauthorized appropriation in order "to preserve the dreaming." 377 The plaintiffs' and the court's concern, in other words, was dilutive copying, copying that would in this case not so much destroy the relative utility or "selling power" of the work as it would destroy or even pervert the work's spiritual power, its "aura," in some sense, its absolute utility. Third and perhaps most tellingly, like modern forms of consumption-based distinction, TCEs are instruments of social ordering within their originating societies. Such societies tend deliberately to limit access to certain of their TCEs by members of their own societies in order to facilitate, among other things, the enforcement of social hierarchy and the production of social homeostasis. 378 Again, Australian -------------------------------------------------------------courts have proved to be especially sensitive to this aspect of TCEs. As early as 1976, the Supreme Court of the Northern Territory in Australia justified its injunction of the sale of a scholarly book within that territory on the grounds that the book's "revelation of the [Pitjantjatjara people's] secrets to their women, children and uninitiated men may undermine the social and religious stability" of their "social system." 379 International instruments for the protection of TCEs have also implicitly endorsed the stratifying function of secret/sacred TCEs. An example is found in the definition of TCEs given in The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles 380 of the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The definition acknowledges the "right" of certain "individuals" to maintain, use, or develop TCEs "in accordance with [the] customary law and practices" of their society. 381 But for all of their similarity to the subject matter of modern sumptuary intellectual property law, most TCEs struggle to meet the originality and fixation requirements of conventional copyright law, and are too expansive and protean to be protectable under conventional trademark law. This has prompted the call for sui generisand highly unconventional -forms of TCEs protection. The Revised Objectives and Principles, for example, imposes no requirement that TCEs be original or fixed, and provides that TCEs be given indefinite protection, so long as the community that originated the TCE continues to use it. 382 The commentary explains that this provision "embodies a trademark-like emphasis on current use." 383 As for TCEs that have fallen into the public domain or are otherwise being used in some manner by parties other than their originating communities, the Revised Objectives and Principles provides for retroactive protection. Its "Transitional Measures" provisions specify that infringing acts that began before the Revised Objectives and Principles came into force "should be brought into conformity" with the text "within a reasonable ------------------------------------------------------------ The reader may object that, like other instruments dedicated to TCEs protection, the Revised Objectives and Principles is little more than aspirational international law, and that it has very little chance of actually being transformed into some binding international instrument. This is probably true. But it does give some indication of what happens to the norms of conventional progressive intellectual property law when they are skewed toward the preservation of a "social system." We need not rely on TCEs instruments, however, to provide us with this insight. For much of what the Revised Objectives and Principles proposes that we do to preserve indigenous social systems we are already doing to preserve our own social system, albeit in less explicit fashion. We saw above that we already provide trademark-like antidilution protection to forms of distinction, including trademarks, copyrightable expression, and product designs, and at least in its trademark form, this protection is indefinite in term. We also saw above the recovery from the public domain of designations of source that U.S. consumers, for example, have long assumed to be generic, and the fair use of which is now severely constricted. And perhaps most strikingly, modern consumer society has come to rely on intellectual property law to control access to its most distinctive goods. The difference is that these intangible goods are not kept secret, but heavily advertised. I have argued so far that intellectual property law has come to function as sumptuary law, not because it provides a means to regulate which distinctive goods consumers may consume, as did early modern sumptuary law, but because, quite simply, it enables the producers of ------------------------------------------------------------- 384 Id. Annex at 39; see also South Pacific Model Law, supra note 367, cl. 3 (providing protection for "traditional knowledge and expressions of culture that: (a) were in existence before the commencement of this Act; or (b) are created on or after the commencement"). 385 Revised Objectives and Principles, supra note 367, Annex at 26. 386 Id. The Model Provisions, by comparison, offer broad exceptions for "purposes of education" and "creating an original work," among others. See Model Provisions, supra note 367, § 4, ¶ ¶ 51, 53. 387 See Revised Objectives and Principles, supra note 367, Annex at 43. distinctive goods to control their production. Intellectual property law has proved so far to be reasonably successful in fulfilling this aspect of its sumptuary role. The only legal problem that remains outstanding is one of enforcement. In this respect, previous forms of sumptuary law invariably failed. But sumptuary intellectual property law has been more successful. This is because we enforce sumptuary intellectual property law in the name of property rights and only indirectly, if even consciously, in an effort to preserve the stability of our consumption-based system of social distinction. Our enforcement efforts are essentially private in nature, as is modern sumptuary law itself. I have further argued that the capacity of intellectual property law to serve as sumptuary law is helping to shift much of modern competitive consumption toward the consumption of distinctive intellectual properties. This is because other commodified forms of distinction, those unprotected by intellectual property law, are quickly overcopied, either through exact reproduction or persuasive imitation, with the result that their distinctiveness is quickly diluted. The same process arguably affects noncommodified forms of distinction and meaning as well. The protections that we seek to give to indigenous cultural expressions we do not give to our own. Our religious and political symbols, for example, may be freely used and their meanings freely diluted. As a result, many of our most powerful and unambiguous forms of social distinction, if not more broadly of lived meaning, come to us now as intellectual properties, 388 including the "icons of primordial integrity" provided to us by premodern cultures. Finally, I have argued that the theoretical coherence of intellectual property law itself has been severely compromised by the emergence of sumptuary intellectual property law, whose assumptions and purposes are very much at odds with those of conventional, progressive intellectual property law, and that this is beginning to have a practical effect on the capacity of mainstream intellectual property law to "promote the Progress." Firms engaged in the production of goods that we would not generally understand to be socially distinctive are taking advantage of sumptuary intellectual property law doctrines to expand the scope of protection given to their goods. 389 Particularly in the trademark context, protection given to prevent dilutive copying results in protection much wider in scope than that given to prevent substitutive copying -and than can be justified solely on efficiency grounds. 390 Meanwhile, the outright grant of absolute rights in the use ------------------------------------------------------------ of geographic terms, unqualified by actual consumer perception or norms of fair use, speaks for itself. What remains to be considered, and what I consider tentatively in this Part, is whether intellectual property law, for all its apparent success so far, can ultimately succeed in preserving our modern system of commodity-based social distinction. I suggest here that it cannot. In fact, the emergence of sumptuary intellectual property law may only quicken the decadence and dissolution of this system. This may prove to be a fortunate failure, however. In failing, sumptuary intellectual property law may create the conditions for a different system of social distinction, one characterized more by the production of distinction than by its consumption and one in which intellectual property law would still play a crucial -and salutary -role. While we may be concerned with how sumptuary intellectual property law affects the purposes of progressive intellectual property law, we should also be concerned with how progressive intellectual property law affects the purposes of sumptuary intellectual property law. We should be concerned because of the effects of sumptuary intellectual property law on culture, of which intellectual property law is increasingly constitutive. It may be that the sumptuary turn in intellectual property law will impair the law's ability "to promote the Progress," but to what extent does the law's emphasis on progress affect the ability of sumptuary intellectual property law ultimately to stabilize the sumptuary order? If we accept that there is such a thing as sumptuary intellectual property law, and that we are stuck with it, then can we at least conclude that it does what it is intended to do? From the perspective of those who would preserve the sumptuary code by means of intellectual property law, the answer is not an encouraging one. We saw above that one consistent characteristic of early modern sumptuary law was its repeated attempts to ban new fashions. It makes sense that a regime of sumptuary law should seek to do so. Controls on the consumption of distinctive goods may maintain the distinctiveness of those particular goods, but the controls will do little to stabilize the sumptuary order if consumers can simply move on to other distinctive goods in an effort to distinguish themselves over, with, or against others. The fundamental failing of intellectual property law in this regard is that it does not seek to prevent the innovation of new forms of distinction, nor does it have any means of doing so. On the contrary, in its progressive incarnation, it deliberately encourages such innovation by offering its protection to all qualifying goods. As early modern framers of sumptuary law no doubt recognized, 391 such an open-ended system of sumptuary law may prevent the dilution of the rarity of existing goods, but it also promotes the dilution of the distinctiveness of rarity itself by encouraging the introduction into the sumptuary code of a multitude of new forms of rarity. Early modern framers proved to be unable to control the introduction of new fashions, but they could at least rely on material constraints on the introduction of new distinctive goods. We cannot rely on such constraints, however, largely because of intellectual property law. As more and more of our competitive consumption shifts to immaterial goods whose rarity is guaranteed, even promoted, by intellectual property protection, it floats free from any moorings in material bases for rarity. The raw materials available for the creation of distinctive goods have effectively become unlimited. Increasingly, the only significant limit that we face is provided by the limit in our ability to consume, or comprehend, the abundance of rarities that are offered to us. The social and cultural implications of such a situation are profound. They are particularly apparent in a place where this situation has already fully obtained: virtual reality. As one observer of Second Life recounted, "[i]n Second Life, there's no such thing as a diamond wedding ring. The problem . . . is that rare and precious stones as we know them can't exist in Second Life. That's because once purchased these items can be easily duplicated, undercutting the basis of their market value." 392 It should be no surprise, then, that proprietors of virtual worlds like Second Life have begun to introduce intellectual property-like rules to enforce regimes of rarity, 393 and that luxury goods manufacturers have turned to real-world intellectual property law in an attempt to stop the virtual counterfeiting of their goods as well. 394 Yet these efforts appear so far to be no more effective than any other form of sumptuary law in stabilizing virtual regimes of competitive consumption. The problem here is not simply one of ineffective enforcement. More fundamentally, the problem is that in most virtual environments in the nature of Second Life, there are no constraints on the introduction of new forms of distinction. In such environments, where "[e]veryone . . . is a luxury consumer," 395 "status items ------------------------------------------------------------ become so commonplace that they may lose their social meaning." 396 The result is that only the most outrageous or intricately engineered forms of distinction confer status -and then are quickly copied. 397 While it is commonplace to observe that virtual environments are becoming more and more like nonvirtual environments, the reverse is arguably true as well: in advanced consumer societies, the nonvirtual world is becoming more and more like the virtual world. The difference between these two forms of convergence, of course, is that the stakes associated with the latter form are considerably higher. Consider competition for hierarchical status. I noted above that hierarchical status-seeking tends to result in zero-sum outcomes, which appears to be the case in virtual reality as much as anywhere else. But as the production and consumption of immaterial status goods in the nonvirtual world intensifies under the auspices of intellectual property law, the costs to society of this zero-sum struggle are becoming very real. Resources better spent elsewhere, perhaps in the pursuit of absolute utility or "Progress," are instead spent in pursuit of intangible and otherwise typically quite meaningless and useless forms of relative utility. 398 By promoting the creation of intangible status goods and preserving them once created, intellectual property law in its combined sumptuary and progressive incarnations only fuels this process. It is little consolation that this appears now to be one of the deliberate purposes of the law. But the implications of the open-endedness of sumptuary intellectual property law are possibly far more serious with respect to competition not for hierarchical status, but simply for distinction, for difference, for identity. I proposed above that as our system of consumption-based social distinction produces more and more commodified forms of distinction, the ability of individuals to comprehend these forms may reach a limit, one beyond which a seeming infinitude of such forms of distinction appears to blur into indistinction. Here, the consumption-based system of self-distinction breaks down; its language is no longer meaningful to the individual or to those who invest the individual with distinction. Admittedly, this is a highly speculative proposition. Yet we already see this process at work in virtual reality environments. Often missed in the overwhelming commercial and scholarly enthusiasm surrounding the emergence of massively multiplayer online worlds, more sober accounts of such "Metaverse[s]" 399 frequently note the degree to which their inhabitants adopt the sophis- ------------------------------------------------------------ ticated, disengaged pose of the "flâneur" 400 as they endlessly wander looking for something or someone of meaningful interest. 401 We also see this process repeatedly identified in nineteenth-and earlytwentieth-century urban studies as responsible for the blasé, coolly ironic stance of the modern urbanite. As Georg Simmel characterized it in The Metropolis and Mental Life, "the blasé attitude consists in the blunting of discrimination," such that "the meaning and differing values of things, and thereby the things themselves, are experienced as insubstantial. They appear to the blasé person in an evenly flat and gray tone; no one object deserves preference over any other." 402 For Simmel, the individual adopts this attitude in an effort to come to terms with the overwhelming power of what Simmel called "objective culture." 403 In more contemporary terms, she adopts it to come to terms with the "semiotic anarchy" 404 of the "long tail," 405 the babble of competing forms of distinction that characterizes the modern global marketplace -and all those who populate it. Sumptuary intellectual property law promises to intensify this general dilution of distinction and further to instill in consumers precisely the blasé "affectation of cold indifference" 406 that Simmel described. Ironically, the primary objection to the view that consumption choices are a form of language is that it improperly assumes "the existence of a shared system of symbols." 407 The irony is that this lack of a shared system of symbols is now arguably making itself felt, as much in nonvirtual reality as in virtual reality. 408 As the economy shifts from an economy of commodities (from the Latin commoditatis, or conve- ------------------------------------------------------------ 407 Campbell, supra note 46, at 341. 408 See MAYNARD, supra note 47, at 88 ("[I]n our fragmented, postindustrial world, there is more likely to be an aggregation of disparate dress codes, even dialects, which are not commonly understood."). nience) to one of copies (from the Latin copia, or copious, abundant), dematerialized signs of rarity take on the characteristics of "floating signifiers" 409 (for example, the Hello Kitty trademark in Japan 410 ) that refer to nothing other than their own relative distinction from other such signifiers. Untethered to any material rarity, and increasingly untethered to any semantic rarity either, intangible forms of distinction offer distinction without meaning, form without content -or, in semiotic terms, value without significance. This is most apparent in the global trademark system, populated as it is by globally famous "hypermarks" 411 that are not so much designations of source as commodified simulations of such designations, simulations that are themselves the focus of consumption rather than the underlying product, if any, to which they are affixed. But this is arguably also a characteristic of much of modern consumer society, where for all of the intensity of its individual forms of distinction, which sumptuary intellectual property law protects and promotes, the distinction of distinction itself is diluted. This is a problem that advertisers have been struggling with for decades 412 -and that was, as it happens, an overriding theme of the work of the late David Foster Wallace. 413 Though the long-term prospects for our system of consumptionbased distinction are thus possibly quite grim indeed, there is no reason why this "hell of the Same" need be our permanent condition. If it is true that our mimetic practices threaten, in Nicole Miller's words, to "ruin[] the whole thing," 414 it is also true that other systems of distinction stand ready to succeed where our commodity-based system may fail. Indeed, one such alternative system of social distinction is already ------------------------------------------------------------- (discussing how reproduction creates an "object world with an unreality and a free-floating absence of 'the referent'"). 410 emerging, albeit in limited areas of post-industrial society. 415 This is the commons-based system of social distinction that underlies open source, 416 creative commons, 417 or "commons-based peer production" 418 models of technological and cultural innovation. In this system of social distinction, the individual achieves distinction not through her consumption of commodities but through her production of gifts. 419 She voluntarily gives to the commons both to fulfill her innate desire to engage in self-actualizing and altruistic 420 work and to achieve the reputational gains that may flow from that work. 421 In what is truly a sign of the times, the core, defining characteristic of this emerging system of social distinction is its approach to, of all things, intellectual property protection. It emphatically rejects certain norms of intellectual property protection (exclusive use rights) at the same time that it emphatically embraces others (exclusive attribution rights). 422 It does so in pursuit, quite essentially, of the utopian promise of unalienated labor, 423 of human flourishing through creative and self-actualizing production. If our intellectual property law policymaking is to be not just technologically but socially -and politically 424 -progressive, our task going forward will be to encourage, to the extent that policymaking can, the growth and extension of the so-cial movements that both rely on and help to propagate this system of social distinction. The primary challenge of intellectual property law in this regard will be to design intellectual property rules that will encourage the production of reputation but not its consumption. That is, our challenge will be to design rules that will facilitate attribution and thus the system of reputation-based distinction that is arguably one of the primary drivers of commons-based production, but that will not at the same time facilitate the commodification and consumption of attribution as a sign of social distinction. This is no simple task. The rules of attribution that currently seek to ensure that the commons-based producer receives credit for his contribution to the commons are the same rules that ensure that Louis Vuitton receives credit for any good that it produces and that thereby enable Louis Vuitton to control the scarcity of its goods. The crucial, if obvious, difference between these two forms of attribution, however, is that commons-based attribution is not susceptible in any significant way to dilution. Its distinctiveness is not based on its rarity and is not diluted by any loss of rarity. On the contrary, its distinctiveness is only enhanced by its propagation. This is because commons-based attributions do not generate their distinctiveness from the scarcity of the goods to which they are affixed -because they cannot, in that such goods are freely copyable. Rather, they generate their distinctiveness from the absolute utility of such goods. 425 To be sure, the underlying absolute utility of a commons good may be superseded by some new form of absolute utility, and thus the reputational gains to the producer of the prior good may be diminished, but this is not dilution. This is rather exactly what attends the "Progress of Science and Useful Arts." The larger challenge of intellectual property law is thus not to overcome the problem of the zero-sum struggle for social distinction. Even in a utopia of total material and immaterial abundance, it is likely -and beneficial -that individuals will still seek out means to distinguish themselves. Nor is the challenge to eliminate all forms of relative consumption of intangible goods. This too is likely impossible. Rather, the larger challenge is to make the best of the laws of "social physics" 426 that govern society in order not simply to further technological and creative progress over time, but also, and perhaps more -------------------------------------------------------------425 Of course, it may be fashionable in some circles to be a consumer of, for example, opensource software, but in those same circles, this mark of distinction is modest compared to that obtained by actually contributing to the production of that software. See ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR, 49-54 (rev. ed. 2001) (discussing "the social context of open source software," id. at 49). 426 AUGUSTE COMTE, Necessity and Opportuneness of This New Science, in AUGUSTE COMTE AND POSITIVISM 195, 196 (Gertrud Lenzer ed., 1975). importantly, to further human flourishing in the present. A number of intellectual property reforms might work, albeit modestly, toward this end. First, to moderate the appeal of relative goods, antidilution protection could be dismantled in its various forms across the full field of intellectual property law, including in Article 23 of TRIPS. Second, to facilitate the production of reputation but not its consumption, we could revise the outcome in Dastar. There the Supreme Court declined to hold that Dastar could avoid liability for both forward and reverse passing off by affixing a simple notice on its product to the effect that the product was based on a public domain work originally produced by Fox. 427 Though the overall outcome in Dastar was undoubtedly progressive, the Court nevertheless missed the opportunity to establish a principle of crucial importance to the attribution system that underlies the commons-based model of innovation: that the exclusive right to claim attribution does not necessarily carry with it the exclusive right to control the uses of the good to which that attribution is affixed. Third and related, we could establish a more robust -and characteristically American -regime of moral rights, one that provides a powerful right of attribution but little if any right of integrity. 428 I present these reform possibilities here only briefly and conditionally because there can be little hope that any of them will be implemented anytime soon. Nor does it necessarily matter if they are. Our copying technology will continue to advance regardless, and its social implications will continue to be felt. The material conditions that have produced the need for sumptuary intellectual property law are the same material conditions that will continue to overwhelm the law's ability to suppress their social consequences. And as this copying technology advances, it is likely that commons-based peer production will advance along with it and extend to areas of production beyond software, the sciences, and the arts. If it is appropriate through intellectual property policymaking to pursue a "utopian vision" 429 of the "good life and the sort of society that would facilitate its widespread realization," 430 then it may also be appropriate in this instance to recognize, as commons-based producers seem already to have done, that technological conditions may be pursuing that utopian vision regardless of whether the law is. - ----------------------------------------------------------- "[M]oney," Simmel wrote in his 1900 treatise The Philosophy of Money, "increasingly becomes nothing but money." 431 This Article has ultimately sought to question the extent to which the same can be said of property: that property increasingly becomes nothing but property. In speaking of money and its "purely negative quality," 432 Simmel asserted that "the intensification of intellectual, abstracting capacities characterizes our time, in which money more and more becomes a pure symbol, indifferent to its own intrinsic value." 433 Certainly, in contrast to Simmel's assertions about money, many forms of property continue through their absolute characteristics to yield "intrinsic value." Whether they be authorized copies of haute couture designs or unauthorized imitations of such designs, clothing quite obviously yields warmth. An authorized or imitation copy of a Ferrari design yields some form of movement. We are far from a general system of "fiat property" to match our general system of "fiat money." Nevertheless, as this Article has sought to suggest, at least some forms of propertyhypermarks are a good example -are now essentially fiat property. To the extent that they yield absolute utility, they do so as little more than a pretext in support of their differentiating role. In an intensification of a basic circularity long ago identified by Felix Cohen, 434 they have no significant characteristic other than that they are property, that they are forms of exclusivity, of rarity, of difference. They are pure, abstract forms of relative utility, yielding nothing other than social differentiation. Intellectual property law is what has made them possible. The emergence of fiat property, which is protected only because it is scarce, and scarce only because it is protected, 435 predicts an emerging, though perhaps still distant, social role for intellectual property law. For all of its emphasis on "Progress," intellectual property law is emerging as a means to preserve certain conditions of scarcity and rarity that "Progress" is increasingly overcoming, and thereby to preserve social structures based on those conditions. This is a strange role for -------------------------------------------------------------intellectual property law, which we have always understood to be a body of law dedicated to the pursuit, essentially, of more: more "Science," more "useful Arts," and ultimately more copies. This understanding has made sense because we have always assumed that what we are getting more of is absolute utility. Now, however, intellectual property law is called upon to make possible more signs of distinction, more rarities, more relative utility. This anticipates, if it does not already reveal, a bizarre and ultimately untenable condition in which the primary means by which we distinguish ourselves and others is through the consumption of a profusion of intangible scarcities of our own creation, and already we seem to be creating these scarcities in ever more abundance. See generally ALAN HUNT, GOVERNANCE OF THE CONSUMING PASSIONS: A HISTORY OF SUMPTUARY LAW (1996); CATHERINE KOVESI KILLERBY, SUMPTUARY LAW IN ITALY R. TURNER WILCOX, THE MODE IN COSTUME 59 (2d rev. & expanded ed. 1947). An early example of direct controls on consumption -probably the earliest -is found in the seventh-century B.C.E. Locrian Code. See MICHAEL GAGARIN, EARLY GREEK LAW 58-62, 67, 78 (1st paperback prtg. 1989).As Montaigne tells it, the lawgiver Zaleucus of Locri stipulated that, among other things, "no free woman should be allowed any more than one maid to follow her, unless she was drunk," and, "bravos excepted, no man was to wear a gold ring, nor be seen in one of those effeminate robes woven in the city of Miletum." 1 MICHEL DE MONTAIGNE, ES-SAYS OF MONTAIGNE 360 (William Carew Hazlitt ed., Charles Cotton trans., 1877). See, e.g., KILLERBY, supra note 2, at 41-42 (noting that preambles to sumptuary laws in late medieval and Renaissance Italy frequently cited "dissipation of capital," id. at 41, as a justification for such laws). See generally Alan Hunt, Governing the City: Liberalism and Early Modern Modes of Governance, in FOUCAULT AND POLITICAL REASON 167 (Andrew Barry et al. eds., 1996).19 See, e.g., RIBEIRO, supra note 1, at 15 ("[T]he real purpose [of early modern English sumptuary law] was to enforce class distinctions which it was felt were being eroded by dress.").20 See Hughes, supra note 8, at 99.21 See VEBLEN, supra note 14, at 87-88 ("[T]he serviceability of consumption as a means of repute, as well as the insistence on it as an element of decency, is at its best in those portions of the community where the human contact of the individual is widest and the mobility of the population is greatest." Id. at 87.); see also HUNT, supra note 2, at 136 (discussing the "crisis of recognizability" that marked the transition to urbanization and modernity in early modern Europe (internal quotation marks omitted)).22 See, e.g., Hunt, supra note 18, at 170. See TALCOTT PARSONS & NEIL J. SMELSER, ECONOMY AND SOCIETY: A STUDY IN THE INTEGRATION OF ECONOMIC AND SOCIAL THEORY 263 (1st paperback ed. 1965). See Christian Fraser, Italy Arrests "Fake Ferrari" Gang, BBC NEWS, Feb. 28, 2008, http://news.bbc.co.uk/2/hi/europe/7269774.stm (describing Italy's recent arrest of a group of individuals engaged in the manufacture of counterfeit Ferrari 328 GTBs). See Shunsuke Tabeta, Apple's Sophisticated Marketing Expertise Faces Tough Test in China, NIKKEI WKLY., July 28, 2008, at 11 (discussing the spread of iPhone look-alikes in China); Jason Tan, Banking on the Look Factor, NEW STRAITS TIMES (Malaysia), Dec. 6, 2007, at 9 (same). Code Just. 11.8.3 (Theodosius, Arcadius & Honorius 393/395) (S.P. Scott trans.). CARL KÖHLER, A HISTORY OF COSTUME 289 (Emma von Sichart ed., Alexander K. Dallas trans., 1933); cf. Cissie Fairchilds, The Production and Marketing of Populuxe Goods in Eighteenth-Century Paris, in CONSUMPTION AND THE WORLD OF GOODS 228 (John Brewer & Roy Porter eds., 1993) (discussing lower class consumption of "cheap copies of aristocratic luxury items" beginning in late-eighteenth-century Paris after the lifting of sumptuary laws). See Zvi S. Rosen, In Search of the Trade-Mark Cases, 83 ST. JOHN'S L. REV. (forthcoming) (manuscript at 32), available at http://ssrn.com/abstract=1268558. G.H. Mumm Champagne v. E. Wine Corp., 142 F.2d 499, 501 (2d Cir. 1944) (Hand, J.); see also David Hancock, Commerce and Conversation in the Eighteenth-Century Atlantic: The Invention of Madeira Wine, 29 J. INTERDISC. HIST. 197, 216-18 (1998) (describing eighteenth-century Madeira producers' attempts to suppress imitations). See generally NEAL STEPHENSON, THE DIAMOND AGE (1995); Ralph C. Merkle, It's a Small, Small, Small, Small World, TECH. REV., Feb./Mar. 1997, at 25, extended version available at http://www.zyvex.com/nanotech/MITtecRvwSmlWrld/article.html (discussing the manufacturing potential of molecular nanotechnology). See, e.g., Hearing on H.R. 5055, supra note 133, at 12 (statement of Jeffrey Banks, Fashion Designer, on behalf of the Council of Fashion Designers of America). See generally JACKSON LEARS, FABLES OF ABUNDANCE: A CULTURAL HISTORY OF ADVERTISING IN AMERICA 218-34 (1994). 31 Velisarios Kattoulas, Bags of Trouble, FAR E. ECON. REV., Mar. 21, 2002, at 52, 52.32 Id. The Third Circuit case of Gucci America, Inc. v. Daffy's, Inc., 354 F.3d 228 (3d Cir. 38 See GEORG SIMMEL, The Philosophy of Fashion, in SIMMEL ON CULTURE 187, 189 (David Frisby & Mike Featherstone eds., 1997) (discussing the "two opposing tendencies" of "social equalization" and "individual differentiation"); see also C. Scott Hemphill & Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 STAN. L. REV. 1147, 1164-66 (2009) (discussing consumers' and producers' inclination to engage in "flocking" and "differentiation").39 See Marilynn B. Brewer, Optimal Distinctiveness, Social Identity, and the Self, in HAND-40 See Vignoles et al., supra note 34, at 342-46. 41 See, e.g., GEORG SIMMEL, The Metropolis and Mental Life, in THE SOCIOLOGY OF GEORG SIMMEL 409 (Kurt H. Wolff ed. & trans., 1950). 42 See, e.g., EDWARD SAPIR, Fashion, in 3 THE COLLECTED WORKS OF EDWARD SAPIR 265 (Regna Darnell et al. eds., 1999). 43 See Caroline A. Foley, Fashion, 3 ECON. J. 458 (1893). Foley's work has only recently begun to be recognized. See Edward Fullbrook, Caroline Foley and the Theory of Intersubjective Demand, 32 J. ECON. ISSUES 709, 709-10 (1998). 44 See, e.g., Angela Chao & Juliet B. Schor, Empirical Tests of Status Consumption: 47 See MARGARET MAYNARD, DRESS ANDGLOBALISATION (2004); see also CLOTHING AND48 See, e.g., Giacomo Corneo & Olivier Jeanne,49 Georg Simmel, Fashion, 10 INT'L Q. 130, 138-39 (1904). 50 See generally Peter M. Kort et al., 51 Business Sense, ECONOMIST, Mar. 6, 2004, 50 (Fashion Survey insert), at 8. 52 See id. See Scott Jaschik, Academic Fashions Aren't Just Sartorial, INSIDE HIGHER ED, Dec. 28, 2006, http://www.insidehighered.com/news/2006/12/28/papers (describing a Modern Language Association panel on literary-academic fashion). 55 See, e.g., H. Leibenstein, Bandwagon, Snob, and Veblen Effects in the Theory of Consumers' Demand, 64 Q.J. ECON. 183, 184 (1950); see also Philip R.P. Coelho & James E. McClure, 56 See generally CRANE, supra note 15. 57 See, e.g., Diana Crane, Diffusion Models and Fashion: A Reassessment, 566 ANNALS AM. 58 See, e.g., Dorie S. Goldman, "Down for La Raza": Barrio Art T-Shirts, Chicano Pride, and Cultural Resistance, 34 J. FOLKLORE RES. 123 (1997). 59 See MAYNARD, supra note 47; see also CLOTHING AND DIFFERENCE, supra note 47. 60 See, e.g., DICK HEBDIGE, SUBCULTURE: THE MEANING OF STYLE (Terence Hawkes ed., 1979); TED POLHEMUS, STREET STYLE: FROM SIDEWALK TO 101 See H.P. Bovenkerk et al., Preparation of Diamond, 184 NATURE 1094 (1959); F.P. Bundy et al., Man-Made Diamonds, 176 NATURE 51 (1955). 105 JACQUES PÉPIN, JACQUES PÉPIN FAST FOOD MY WAY 58 (2004).106 See Daniel Patterson, Hocus-Pocus, and a Beaker of Truffles, N.Y. TIMES, May 16, 2007, at F1; cf.107 Ferrari S.P.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1237-38 (6th Cir. 1991). 108 Ferrari S.P.A. Esercizio Fabriche Automibili E Corse v. Roberts, 739 F. Supp. 1138, 1140 (E.D. Tenn. 1990), aff'd, 944 F.2d 1235. 109 Id. 110 See Ferrari S.p.A. 113 See Richard Boudreaux, In Italy, It's Survival of the Fakest, L.A. TIMES, Oct. 6, 2000, at E1. 114 See TIM PHILLIPS, KNOCKOFF: THE DEADLY TRADE IN COUNTERFEIT GOODS 69-70 (2005); Boudreaux, supra note 113. -130 See, e.g., Imitating Property Is Theft, ECONOMIST, May 17, 2003, at 52, 54 (discussing improvements in counterfeiting technology). 131 576 F. Supp. 2d 463 (S.D.N.Y. 2008). 132 Id. at 485. I am grateful to Ann Bartow for calling this fact to my attention. 133 Protection for Fashion Design: Hearing on H.R. 5055 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 12 (2006) [hereinafter 143 See, e.g.,Corrigendum to Council Directive 2004/48, 2004 O.J. (L 195) 16 (EC); Council Regulation 1383/2003, 2003 O.J. (L 196) 7 (EC). 144 See, e.g., 145 See, for example, Case C-59/08, Copad SA v. Christian Dior Couture SA (Apr. 23, 2009 147 See, e.g., Boston Prof'l Hockey Ass'n v.Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004 (5th Cir. 1975); see also Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535 (11th Cir. 1985); Arsenal Football Club Plc v. Reed, [2003] EWCA (Civ) 696 (Eng.); Stacey L. Dogan & Mark A. Lemley, The Merchandising Right: Fragile Theory or Fait Accompli?, 54 EMORY L.J. 461 (2005); Jane C. Ginsburg, Exploiting the Artist's Commercial Identity: The Merchandizing of Art Images, 19 COLUM.-VLA J.L. & ARTS 1 (1994-1995). 148 See, e.g., Long-Sleeved Garment with Wristwatch Accommodations, U.S. Patent No. 7,380,287 (filed July 1, 2005); Watch Cuff, U.S. Patent No. 7,120,936 (filed June 17, 2004). 149 See, e.g., Matthews v. Wozencraft, 15 F.3d 432, 437-38 (5th Cir. 1994) ("150 See, e.g., Allen v. Nat'l Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) (Woody Allen lookalike); 151 See Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (Tom Waits sound-alike); 152 See, e.g., 160 BENJAMIN, supra note 158, at 217. 161 539 U.S. 23 (2003). 162 BENJAMIN, supra note 158, at 221. Id. 213 Hermès Canada Inc. v. Park, No. S046494, [2004] B.C.S.C. 1694 ¶ 44 (Dec. 17, 2004) (Can.), 253 Case C-487/07, 2009 ECJ EUR-Lex LEXIS 532 (June 18, 2009). 254 Id. ¶ 46. 255 L'Oreal SA v. Bellure NV, [2006] EWHC (Ch) 2355, [62] (Eng.); see also L'Oreal SA v. 256 See Trade Marks Directive, supra note 205. 257 Id. art. 5(2), at 29. 258 Case C-487/07 ¶ 50. 259 Id. ¶ 33. 260 Case C-252/07, Intel Corp. v. CPM United Kingdom Ltd. (Nov. 27, 2008 263 See, e.g.,Hasbro, Inc. v. Internet Entm't Group, Ltd., No. C96-130WD, 1996 WL 84853, at *264 See, e.g., Eastman Kodak Co. v. Rakow, 739 F. Supp. 116, 118 (W.D.N.Y. 1989) (finding comedian's use of stage name Kodak in connection 301 See, e.g., Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir. 2001);

15 DIANA CRANE, FASHION AND ITS SOCIAL AGENDAS: CLASS, GENDER, AND IDENTI-TY IN CLOTHING 247 (2000).

are the most stable such forms of rarity that we have left. Thus, intellectual property law has not so much assumed the role of sumptuary law as had that role thrust upon it, with the result that certain areas of intellectual property law are undergoing a "functional transformation" 28 orienting them toward the governance of our sumptuary code.

As Part II seeks to show, the adaptation of antidilution and authenticity protection to serve sumptuary ends is especially revealing because, in serving these ends, both modes of protection operate according to assumptions that run contrary to nearly everything we conventionally believe about the nature of intellectual property and the purposes of intellectual property law. Both reveal the extent to which the sumptuary side of intellectual property law is emerging as a strange, inverted version of the progressive side of the law, with possibly severe implications for the coherence and efficacy of the law as a whole.

I. THE SUMPTUARY CODE AND THE PROBLEM OF COPYING TECHNOLOGY

In France, as in certain other European countries, it is a criminal act not simply to manufacture or sell, but also to possess, a counterfeit -------------------------------------------------------------good, regardless of where one purchased it. 30 Yet this did not dissuade a South Korean university student from walking into a Chanel store in Paris in 2002 and demanding that the store repair the broken shoulder strap of her Chanel bag, which the store did without charging and with "profuse apologies." 31 As the student well knew, the bag was a counterfeit, but the Chanel employees, even upon closely inspecting the bag, simply could not tell. 32 Unbeknownst to them, they had come face to face with a legendary South Korean "super copy," 33 the threedimensional analogue of the perfect digital copy.

To defend this reasoning, I first briefly discuss the function and operation of this system. I concentrate in particular on the nature of the fashion process because it is through the complex operation of this process that consumer societies allocate social distinction. I then address the negative consumption externalities problem that besets competitive consumption. Finally, I consider the potential of our mimetic technologies to overwhelm the operation of the fashion process and our system of consumption-based social distinction along with it.

A. The Sumptuary Code and the Fashion Process

B. The Limits of Competitive Consumption

For the purposes of this Article, I define relative utility as utility that one derives from how one's consumption compares to the consumption of others, while absolute utility is utility that one derives regardless of how one's consumption compares to that of others. 74 In isolation, in a Rousseauian state of nature, the consumer consumes only the absolute characteristics of a good, "qualities inherent in the commodity itself." 75 In society, however, a consumer may become conscious of and begin to consume a good's relative characteristics -and the empirical evidence overwhelmingly shows that consumers are highly conscious of such characteristics. 76 We may derive warmth from clothing regardless of what others are wearing (absolute utility), but in comparison to what others are wearing, we may also derive distinction (relative utility).

But this leaves open a far more interesting question. The economic account of relative utility emphasizes the social scarcity of hierarchical status across a society, regardless of whether consumers are consuming the same goods. The question is whether there is a similar social scarcity of nonhierarchical distinction at the level of a society as a whole. Do consumers compete across society for a limited supply of qualitative distinction? Is there some social limit on the amount of qualitative distinction that societies can achieve, or at least, that members of a society can perceive in and thus bestow upon others?

There is no clean answer, and I will defer much of this Article's discussion of this issue until Part III, because we have much more ground to cover before we are in a position to understand how intellectual property law's role as sumptuary law might inform that discussion. But for our purposes here, it may be enough to suggest, as various social theorists of modernity have, 90 that in increasingly massified and complex urban and now global consumer societies, it grows ever more difficult for individuals (and firms) to differentiate themselves from and make sense of the cacophony of differences, the "living crowd," 91 that envelops them in the marketplace. Members of such a society grow inured to all but the most outrageous gestures of individuation -thus the "blasé attitude" 92 that Simmel identified as characteristic of the metropolitan (to which I will return below), thus the practice of "shock advertising" 93 to overcome consumers' "advertising ------------------------------------------------------------- 88 See LIPOVETSKY, supra note 53, at 46 (emphasizing the importance of the "desire to express individual uniqueness" as what drives the fashion process).

89 HIRSCH, supra note 72, at 3. 90 See, e.g., ZYGMUNT BAUMAN, INTIMATIONS OF POSTMODERNITY, at xx (1992) ("Constantly bombarded, the absorptive powers of the public are unable to cling to any of the competing allurements for longer than a fleeting moment. To catch the attention, displays must be ever more bizarre, condensed and (yes!) disturbing; perhaps ever more brutal, gory and threatening."). 91 WALT WHITMAN, Crossing Brooklyn Ferry, in LEAVES OF GRASS 144, 155 (Doubleday 1997) (1855). 92 See SIMMEL, supra note 41, at 413. 93 See MARK TUNGATE, ADLAND: A GLOBAL HISTORY OF ADVERTISING 146-49 (2007) (discussing the practice of shock advertising).

C. The Social Problem of Copying Technology

II. INTELLECTUAL PROPERTY LAW AS SUMPTUARY LAW

This ideology -which many readers may well take for granted as no "ideology" at all -has progressive technological and economic consequences that are clear and well understood, but it also has progressive, even radical cultural and social consequences as well, and it is these consequences that we are calling upon sumptuary intellectual property law to suppress. These consequences are made especially apparent in two strangely related works about copying: Walter Benja- ------------------------------------------------------------ 161 To be sure, Walter Benjamin (the German Marxist critical theorist) and Justice Scalia (the American conservative jurist) make for an odd and no doubt unintentional theoretical partnership. But together they register the radical potential of our ideology -and culture -of the copy.

Consider first Benjamin's Work of Art essay. In it, Benjamin looked to the politicization of art -and to the politicization of film, in particular -as an antidote to European fascism's aestheticization of politics. In the process, Benjamin famously asserted that:

Justice Scalia's Dastar opinion -an opinion, appropriately enough, about intellectual property rights in a political film 166 -fully supports the break with the "domain of tradition" that Benjamin celebrated, albeit for reasons altogether different from those given by Benjamin. More significantly, it assumes that this break has already occurred. In Dastar, Justice Scalia found that the defendant, Dastar, did not engage in reverse passing off when it produced and sold as its own work a revision of Fox's public domain work. In doing so, he asserted, as an empirical matter, that consumers have little concern for who originated the intangible work embodied in the tangible copies that they consume:

Fox's proposed reading of "origin," not just to MGM, but also to Hammerstein, Bizet, and Mérimée, if not others. 173 He concluded: "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries." 174 Dastar anticipates the austere, dispassionate sensibility of a world of universal printers, which is the sensibility of "commodity fetishism" 175 updated for a post-industrial age. Dastar implies that the utility of the work and its copies is intrinsic and absolute; their utility does not rely on the circumstances of their production or indeed their consumption. The imperative to copy overrides any concerns about history and authenticity. In any event, authenticity is ultimately unknowable; history has "no discernible limits." 176 The "source of the Nile" is neither the consumer's nor the law's concern, so long as it keeps on flowing.

In Benjamin's Work of Art essay and Justice Scalia's Dastar opinion, then, we see prefigured the full consequences of the ideology of the copy. At the same time that it produces profound technological and economic progress, the imperative to copy and disseminate also continually disenchants "aura," both the aura of uniqueness and the aura of authenticity. This disenchantment conduces to the development of social structures in which distinction is not based on the consumption of unique or authentic objects, because uniqueness and authenticity are no longer tenable. The utopian endpoint of the ideology of the copy is a post-scarcity culture in which a "plurality of copies" are possessed by all who desire them, so that the possession of a copy may yield only absolute but not relative utility, in other words, so that the possession of a copy -as the term implies -may form no basis for distinction.

We are calling upon intellectual property law now to counteract the social and cultural leveling that the law, in its progressive aspect, otherwise assumes to be a beneficial incident of technological and economic progress. Through sumptuary intellectual property law, we seek the means in essence to re-enchant copies, to render them as somehow unique or authentic. In this sense, while progressive intellectual property law is essentially modern in orientation, sumptuary intellectual property law is essentially anti-modern. In the form of antidilution protection, sumptuary intellectual property law seeks to preserve consumers' perception that certain copies, though they are merely copies, possess an aura of uniqueness. In the form of authenticity protection, ------------------------------------------------------------ sumptuary intellectual property law goes further. It provides the means to invest certain copies with the aura of authenticity on the basis that they are not copies but rather originals. I turn first to antidilution protection.

B. Intellectual Property Law as Antidilution Law

The Venetian Senate was not the only legislative body to seek to ban new fashions in apparel or other demonstrable forms of consumption. In fact, nearly all past sumptuary regimes sought to do so. For example, an English proclamation of 1575 prohibited anyone from "devising any new forms of apparel," 177 while a century later, Charles II declared his "resolution of setting a fashion for clothes, which he will never alter." 178 In the interim, the Scottish Parliament did essentially the same. 179 But the prohibition of new fashion only made sense, to the extent that it made any sense at all, if existing fashions continued to do their differentiating work. Sumptuary law has thus generally consisted of two sets of prohibitions: prohibitions against new fashions and prohibitions against unauthorized uses of currently existing fashions. It is to modern forms of this second type of prohibition that I turn here, under the rubric of "dilution."

Dilution is one of the most elusive concepts in all of intellectual property law, and also one of the most important -yet few give the concept its due. The concept is elusive because it is an essentially semiotic rather than economic or political concept, one that is concerned not so much with the construction of identity, which is relatively easy to understand, as with the construction of difference, which is not. The concept is important because an increasing number of intellectual property laws are taking on the characteristics of antidilution law. In an intensifying brand culture, it should not be surprising that trademark law is emerging as a net exporter of doctrinal inspiration. In what follows in this section, I first seek to define the phenomenon of dilution and then assess how various areas of intellectual property law have been adapted to serve as antidilution law.

2. Trademark Law as Antidilution Law. -The irony is that the one area of intellectual property law that we would expect to perform the function of antidilution law, the very area of trademark law that we call "antidilution law," does no such thing. This has necessitated the development of other, indirect forms of antidilution protection in trademark law and elsewhere. 201 Before turning to these forms, I first consider the failure of trademark antidilution law to live up to its name.

207 See, e.g., Moseley, 537 U.S. at 425 (internal quotation marks omitted). 208 Richard A. Posner, When Is Parody Fair Use?, 21 J. LEGAL STUD. 67, 75 (1992); see also Ty Inc. v. Perryman, 306 F.3d 509, 511 (7th Cir. 2002) (Posner, J.) (discussing the search costs rationale). 209 LANDES & POSNER, supra note 71, at 207 (internal quotation marks omitted). For a more persuasive account of dilution by blurring, but one that has not yet been adopted by courts, see Laura R. Bradford, Emotion, Dilution, and the Trademark Consumer, 23 BERKELEY TECH. L.J. 1227 (2008). 210 See, e.g., Louis Vuitton Malletier v. Dooney & Bourke, Inc., 340 F. Supp. 2d 415, 450-51 (S.D.N.Y. 2004) (giving "little, if any," id. at 451, weight to dilution survey that asked if defendant's conduct would lessen the "perceived distinctiveness, exclusivity, value and desirability," id. at 450, of the plaintiff's mark because, among other things, "desirability is unrelated to a mark's ability to identify and distinguish Louis Vuitton's handbags," id. at 450-51).

211 Rebecca Tushnet, Gone in Sixty Milliseconds: Trademark Law and Cognitive Science, 86 TEX. L. REV. 507, 509 (2008). Tushnet is highly critical of this concept. See id. at 527-46.

212 Tellingly, in Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991), in which the defendant produced Oscar statuette knockoffs for sale as motivational awards, the Ninth Circuit used antidilution doctrine to accomplish what was a clear sumptuary purpose, but it avoided referencing "blurring" when it did so. Instead, in reversing the district court's finding of no dilution, the Ninth Circuit cited Schechter's concept of "whittling away," id. at 1457 (internal quotation marks omitted), and spoke in general terms of the dilution of distinctiveness:

[T]he Star Award is available to corporations, television stations, theater groups, and any member of the general public who desires to purchase one. If the Star Award looks cheap or shoddy, or is disseminated without regard to the ultimate recipient, the Oscar's

Though the antidilution cause of action is itself a failure, courts have adapted other areas of trademark law to do the regulatory work that antidilution law was originally intended to do. In the process, they have made all the more explicit the social-theoretical foundations on which antidilution protection is built. This is most apparent in the various ways in which courts have expanded the basic anticonfusion cause of action (which seeks to prevent consumer confusion as to the true source of the defendant's goods) to prevent dilutive, rather than substitutive, copying.

As one Canadian trial court forthrightly averred, in such cases "the real issue is not lost sales but rather the loss of reputation which will flow" 213 from diluting conduct.

Consider, for example, the doctrine of post-sale confusion. This doctrine holds that even if consumers are not confused at the point of sale as to the true source of the goods that they are purchasing, other consumers may be confused as to the source of those goods after the sale. To take an example from recent Chinese case law, the buyer of knockoff Gucci shoes at the Shanghai No. 1 Yaohan Department Store is certainly not confused as to their true source, particularly since the shoes prominently bear the trademark "Senda" (a well-known Chinese shoe manufacturer) on the insole and are sold at a relatively moderate price from the "Senda" counter in the department store. Nevertheless, as the Chinese court explained:

235 Id. at 237. 236 Id. at 236. 237 Id. at 237. 238 Id. 239 Id. 240 See Adam Smith, Chinese Sham Glam: Innocuous Innovation or Mark-Owner Menace?, WORLD TRADEMARK REV. DAILY, Feb. 24, 2009 (explaining that shanzhai are parody products "diametrically opposed to fashion and brands" and are "about people turning their noses up to the government and IP owners" (quoting George Chan, IP consultant at Rouse & Co.) and that "where there is baoli (outlandish, dishonest profit) there is shanzhai" (quoting Lucy Nichols, Nokia director of global brand protection)).

241 Schieffelin, 850 F. Supp. at 242 (quoting Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204-05 (2d Cir. 1979)). The Schieffelin court credited survey evidence in which ten percent of those surveyed believed that the plaintiff was the source of Dom Popingnon popcorn and twenty-two percent believed that the defendant "required authorization" from the plaintiff to launch its product. Id. at 247.

[S]ome customers would buy plaintiff's cheaper clock for the purpose of acquiring the prestige gained by displaying what many visitors at the customers' homes would regard as a prestigious article. . . . Plaintiff's intention thus to reap financial benefits from poaching on the reputation of the Atmos clock is of major importance. 249 In a surprisingly persistent line of cases, all involving high-status goods, U.S. courts have since followed the reasoning of the Atmos clock case to hold that it is simply not fair for a person to acquire the prestige associated with a good -by using, for example, a product that "looks and sounds like the real thing" 250 -without paying the customary price. 251 European courts have ruled similarly, 252 most significantly in the recent landmark European Court of Justice (ECJ) case L'Oréal SA v.

- ----------------------------------------------------------- ), http://curia. europa.eu/jcms/jcms/j_6 (enter "C-252/07" in "Case no" field and select "Search"). 261 Id. ¶ 77 ("[P]roof that the use of the later mark is or would be detrimental to the distinctive character of the earlier mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent on the use of the later mark, or a serious likelihood that such a change will occur in the future."). Earlier in its judgment, the ECJ stated that "detriment to the distinctive character of the earlier mark" is "also referred to as 'dilution,' 'whittling away' or 'blurring.'" Id. ¶ 29.

3. Copyright Law as Antidilution Law. -Our conventional view of copyright law does not admit of the possibility of dilutive copying of copyrightable expression. 279 On the contrary, it subscribes to all of the assumptions of the ideology of the copy described above: that copyrightable works are inexhaustible and nonrivalrous in consumption and that their utility, relative or otherwise, need not be protected once the works have been created. Set against these assumptions, the idea that the copying of a copyrighted work should be restricted in order to preserve the work's utility would seem ridiculous. Indeed, it runs contrary to the whole point of copyright law, which is to "promote the Progress" by limiting copying in the near term so that we will enjoy more copying, as much as possible, in the long term.

-Antidilution thinking has also spread to three-dimensional design protection law, both the design patent law we currently have on the books, 302 which I address very briefly here, and the apparel design protection proposals being considered by Congress and likely at some point to become law, 303 which I address at greater length. Though they are rarely recognized as such, both of these are essentially antidilution laws. Like their counterparts abroad, 304 they explicitly limit the subject matter of their protection to product designs that are "attractive or distinctive in appearance," 305 and their primary purpose is to incentivize the creation of this distinctiveness and ensure that it is maintained. Indeed, they are probably the clearest examples we have of the "functional transformation" of intellectual property law into a body of law being used not simply to "promote the Progress," but also, and in tension with that goal, to preserve our system of consumption-based differentiation in the face of copying technology that threatens to undermine it.

C. Intellectual Property Law as Authenticity Law

A common -and probably valid -criticism of Benjamin's Work of Art essay is that it failed to recognize one important consequence of the emergence of mimetic technology: in producing ever more copies, "mechanical reproduction" only amplifies all the more the distinctive "aura" of those things that are perceived not as mechanically reproduced copies, but rather as authentic originals. 337 Producers, in con- -------------------------------------------------------------335 Eric Wilson, The Knockoff Won't Be Knocked Off, N.Y. TIMES, Sept. 9, 2007, at WK 5 (quoting apparel designer Nicole Miller). Hemphill and Suk explain the underlying logic: "If copying increases, and hence the fashion lifespan of the item falls, a consumer will recognize that fact and lower her willingness to pay." Hemphill & Suk, supra note 38, at 1183. 336 See KILLERBY, supra note 2, at 91 ("Luxury performed many useful functions within the city and it was precisely because of its symbolic importance that legislators were concerned to ensure the strict regulation of its use.").

The problem, however, is that mimetic technology can now persuasively -and legally -simulate the material characteristics of most geographically and historically authentic goods, with the result that these material characteristics no longer reliably signal authenticity. Having lost control over the production of material signals of authenticity, traditional producers have therefore turned to forms of intellectual property, such as geographical indications, to establish legal control over the production of immaterial signals of authenticity. Stated more essentially, for all of their talk of terroir, traditional producers are engaging in what has become a quintessential post-industrial strategy: they are calling upon intellectual property law to facilitate the production of immaterial scarcities that may perform the social function that material scarcities once performed.

In this section, I consider two examples of traditional producers' efforts to bend intellectual property law toward their particular sumptuary ends. The first involves the protection of geographical indications (for example, Champagne or Burgundy), which identify the geographic origin of a good where "a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin." 346 The second involves the protection of indigenous aesthetic and sacred expression (for example, Native American or Maori graphic expression), also known as "traditional cultural expressions" (TCEs). Both forms of intellectual property protection reject every aspect of the ideology of the copy that Dastar and the progressive side of intellectual property law espouse, and are now appealing to intellectual property law, at least in its role as authenticity law, to do the same.

(a) TRIPS Article 23. -A good example of European trade negotiators' success in gaining special protection for geographical indications is found in the main geographical indications provisions of the World Trade Organization (WTO) Trade-Related Aspects of International Property Rights (TRIPS) Agreement: Articles 22 and 23. 351 The two Articles pursue very different approaches to the intellectual property subject matter that they protect.

2. Traditional Cultural Expressions Protection. -I conclude this section with a consideration of current and proposed forms of intellectual property protection for traditional cultural expressions (TCEs). It is appropriate to do so because TCEs protection represents the most ambitious -and reactionary -form of sumptuary intellectual property law that we have. In a strange microcosm of the larger processes that this Article seeks to identify, indigenous communities are attempting to preserve social stability by elevating their own sumptuary law with respect to their intellectual works to a global norm.

III. THE FAILURE OF INTELLECTUAL PROPERTY LAW AS SUMPTUARY LAW

I have argued so far that intellectual property law has come to function as sumptuary law, not because it provides a means to regulate which distinctive goods consumers may consume, as did early modern sumptuary law, but because, quite simply, it enables the producers of ------------------------------------------------------------- 384 Id. Annex at 39; see also South Pacific Model Law, supra note 367, cl. 3 (providing protection for "traditional knowledge and expressions of culture that: (a) were in existence before the commencement of this Act; or (b) are created on or after the commencement"). 385 Revised Objectives and Principles, supra note 367, Annex at 26. 386 Id. The Model Provisions, by comparison, offer broad exceptions for "purposes of education" and "creating an original work," among others. See Model Provisions, supra note 367, § 4, ¶ ¶ 51, 53. 387 See Revised Objectives and Principles, supra note 367, Annex at 43.

A. The Futility of Sumptuary Intellectual Property Law

While we may be concerned with how sumptuary intellectual property law affects the purposes of progressive intellectual property law, we should also be concerned with how progressive intellectual property law affects the purposes of sumptuary intellectual property law. We should be concerned because of the effects of sumptuary intellectual property law on culture, of which intellectual property law is increasingly constitutive. It may be that the sumptuary turn in intellectual property law will impair the law's ability "to promote the Progress," but to what extent does the law's emphasis on progress affect the ability of sumptuary intellectual property law ultimately to stabilize the sumptuary order? If we accept that there is such a thing as sumptuary intellectual property law, and that we are stuck with it, then can we at least conclude that it does what it is intended to do?

From the perspective of those who would preserve the sumptuary code by means of intellectual property law, the answer is not an encouraging one. We saw above that one consistent characteristic of early modern sumptuary law was its repeated attempts to ban new fashions. It makes sense that a regime of sumptuary law should seek to do so. Controls on the consumption of distinctive goods may maintain the distinctiveness of those particular goods, but the controls will do little to stabilize the sumptuary order if consumers can simply move on to other distinctive goods in an effort to distinguish themselves over, with, or against others. The fundamental failing of intellectual property law in this regard is that it does not seek to prevent the innovation of new forms of distinction, nor does it have any means of doing so. On the contrary, in its progressive incarnation, it deliberately encourages such innovation by offering its protection to all qualifying goods.

As early modern framers of sumptuary law no doubt recognized, 391 such an open-ended system of sumptuary law may prevent the dilution of the rarity of existing goods, but it also promotes the dilution of the distinctiveness of rarity itself by encouraging the introduction into the sumptuary code of a multitude of new forms of rarity. Early modern framers proved to be unable to control the introduction of new fashions, but they could at least rely on material constraints on the introduction of new distinctive goods. We cannot rely on such constraints, however, largely because of intellectual property law. As more and more of our competitive consumption shifts to immaterial goods whose rarity is guaranteed, even promoted, by intellectual property protection, it floats free from any moorings in material bases for rarity. The raw materials available for the creation of distinctive goods have effectively become unlimited. Increasingly, the only significant limit that we face is provided by the limit in our ability to consume, or comprehend, the abundance of rarities that are offered to us.

B. From Sumptuary to Philanthropic Intellectual Property Law

The larger challenge of intellectual property law is thus not to overcome the problem of the zero-sum struggle for social distinction. Even in a utopia of total material and immaterial abundance, it is likely -and beneficial -that individuals will still seek out means to distinguish themselves. Nor is the challenge to eliminate all forms of relative consumption of intangible goods. This too is likely impossible. Rather, the larger challenge is to make the best of the laws of "social physics" 426 that govern society in order not simply to further technological and creative progress over time, but also, and perhaps more -------------------------------------------------------------425 Of course, it may be fashionable in some circles to be a consumer of, for example, opensource software, but in those same circles, this mark of distinction is modest compared to that obtained by actually contributing to the production of that software. See ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR, 49-54 (rev. ed. 2001) (discussing "the social context of open source software," id. at 49).

426 AUGUSTE COMTE, Necessity and Opportuneness of This New Science, in AUGUSTE COMTE AND POSITIVISM 195, 196 (Gertrud Lenzer ed., 1975).

See generally ALAN HUNT, GOVERNANCE OF THE CONSUMING PASSIONS: A HISTORY OF SUMPTUARY LAW (1996); CATHERINE KOVESI KILLERBY, SUMPTUARY LAW IN ITALY

R. TURNER WILCOX, THE MODE IN COSTUME 59 (2d rev. & expanded ed. 1947). An early example of direct controls on consumption -probably the earliest -is found in the seventh-century B.C.E. Locrian Code. See MICHAEL GAGARIN, EARLY GREEK LAW 58-62, 67, 78 (1st paperback prtg. 1989).As Montaigne tells it, the lawgiver Zaleucus of Locri stipulated that, among other things, "no free woman should be allowed any more than one maid to follow her, unless she was drunk," and, "bravos excepted, no man was to wear a gold ring, nor be seen in one of those effeminate robes woven in the city of Miletum." 1 MICHEL DE MONTAIGNE, ES-SAYS OF MONTAIGNE 360 (William Carew Hazlitt ed., Charles Cotton trans., 1877).

See, e.g., KILLERBY, supra note 2, at 41-42 (noting that preambles to sumptuary laws in late medieval and Renaissance Italy frequently cited "dissipation of capital," id. at 41, as a justification for such laws).

See generally Alan Hunt, Governing the City: Liberalism and Early Modern Modes of Governance, in FOUCAULT AND POLITICAL REASON 167 (Andrew Barry et al. eds.,

1996).19 See, e.g., RIBEIRO, supra note 1, at 15 ("[T]he real purpose [of early modern English sumptuary law] was to enforce class distinctions which it was felt were being eroded by dress.").20 See Hughes, supra note 8, at 99.21 See VEBLEN, supra note 14, at 87-88 ("[T]he serviceability of consumption as a means of repute, as well as the insistence on it as an element of decency, is at its best in those portions of the community where the human contact of the individual is widest and the mobility of the population is greatest." Id. at 87.); see also HUNT, supra note 2, at 136 (discussing the "crisis of recognizability" that marked the transition to urbanization and modernity in early modern Europe (internal quotation marks omitted)).22 See, e.g., Hunt, supra note 18, at 170.

See TALCOTT PARSONS & NEIL J. SMELSER, ECONOMY AND SOCIETY: A STUDY IN THE INTEGRATION OF ECONOMIC AND SOCIAL THEORY 263 (1st paperback ed. 1965).

See Christian Fraser, Italy Arrests "Fake Ferrari" Gang, BBC NEWS, Feb. 28, 2008, http://news.bbc.co.uk/2/hi/europe/7269774.stm (describing Italy's recent arrest of a group of individuals engaged in the manufacture of counterfeit Ferrari 328 GTBs).

See Shunsuke Tabeta, Apple's Sophisticated Marketing Expertise Faces Tough Test in China, NIKKEI WKLY., July 28, 2008, at 11 (discussing the spread of iPhone look-alikes in China); Jason Tan, Banking on the Look Factor, NEW STRAITS TIMES (Malaysia), Dec. 6, 2007, at 9 (same).

Code Just. 11.8.3 (Theodosius, Arcadius & Honorius 393/395) (S.P. Scott trans.).

CARL KÖHLER, A HISTORY OF COSTUME 289 (Emma von Sichart ed., Alexander K. Dallas trans., 1933); cf. Cissie Fairchilds, The Production and Marketing of Populuxe Goods in Eighteenth-Century Paris, in CONSUMPTION AND THE WORLD OF GOODS 228 (John Brewer & Roy Porter eds., 1993) (discussing lower class consumption of "cheap copies of aristocratic luxury items" beginning in late-eighteenth-century Paris after the lifting of sumptuary laws).

See Zvi S. Rosen, In Search of the Trade-Mark Cases, 83 ST. JOHN'S L. REV. (forthcoming) (manuscript at 32), available at http://ssrn.com/abstract=1268558.

G.H. Mumm Champagne v. E. Wine Corp., 142 F.2d 499, 501 (2d Cir. 1944) (Hand, J.); see also David Hancock, Commerce and Conversation in the Eighteenth-Century Atlantic: The Invention of Madeira Wine, 29 J. INTERDISC. HIST. 197, 216-18 (1998) (describing eighteenth-century Madeira producers' attempts to suppress imitations).

See generally NEAL STEPHENSON, THE DIAMOND AGE (1995); Ralph C. Merkle, It's a Small, Small, Small, Small World, TECH. REV., Feb./Mar. 1997, at 25, extended version available at http://www.zyvex.com/nanotech/MITtecRvwSmlWrld/article.html (discussing the manufacturing potential of molecular nanotechnology).

See, e.g., Hearing on H.R. 5055, supra note 133, at 12 (statement of Jeffrey Banks, Fashion Designer, on behalf of the Council of Fashion Designers of America).

See generally JACKSON LEARS, FABLES OF ABUNDANCE: A CULTURAL HISTORY OF ADVERTISING IN AMERICA 218-34 (1994).

31 Velisarios Kattoulas, Bags of Trouble, FAR E. ECON. REV., Mar. 21, 2002, at 52, 52.32 Id. The Third Circuit case of Gucci America, Inc. v. Daffy's, Inc., 354 F.3d 228 (3d Cir.

38 See GEORG SIMMEL, The Philosophy of Fashion, in SIMMEL ON CULTURE 187, 189 (David Frisby & Mike Featherstone eds., 1997) (discussing the "two opposing tendencies" of "social equalization" and "individual differentiation"); see also C. Scott Hemphill & Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 STAN. L. REV. 1147, 1164-66 (2009) (discussing consumers' and producers' inclination to engage in "flocking" and "differentiation").39 See Marilynn B. Brewer, Optimal Distinctiveness, Social Identity, and the Self, in HAND-40 See Vignoles et al., supra note 34, at 342-46. 41 See, e.g., GEORG SIMMEL, The Metropolis and Mental Life, in THE SOCIOLOGY OF GEORG SIMMEL 409 (Kurt H. Wolff ed. & trans., 1950). 42 See, e.g., EDWARD SAPIR, Fashion, in 3 THE COLLECTED WORKS OF EDWARD SAPIR 265 (Regna Darnell et al. eds., 1999). 43 See Caroline A. Foley, Fashion, 3 ECON. J. 458 (1893). Foley's work has only recently begun to be recognized. See Edward Fullbrook, Caroline Foley and the Theory of Intersubjective Demand, 32 J. ECON. ISSUES 709, 709-10 (1998). 44 See, e.g., Angela Chao & Juliet B. Schor, Empirical Tests of Status Consumption:

47 See MARGARET MAYNARD, DRESS ANDGLOBALISATION (2004); see also CLOTHING AND48 See, e.g., Giacomo Corneo & Olivier Jeanne,49 Georg Simmel, Fashion, 10 INT'L Q. 130, 138-39 (1904). 50 See generally Peter M. Kort et al., 51 Business Sense, ECONOMIST, Mar. 6, 2004, 50 (Fashion Survey insert), at 8. 52 See id.

See Scott Jaschik, Academic Fashions Aren't Just Sartorial, INSIDE HIGHER ED, Dec. 28, 2006, http://www.insidehighered.com/news/2006/12/28/papers (describing a Modern Language Association panel on literary-academic fashion). 55 See, e.g., H. Leibenstein, Bandwagon, Snob, and Veblen Effects in the Theory of Consumers' Demand, 64 Q.J. ECON. 183, 184 (1950); see also Philip R.P. Coelho & James E. McClure, 56 See generally CRANE, supra note 15. 57 See, e.g., Diana Crane, Diffusion Models and Fashion: A Reassessment, 566 ANNALS AM. 58 See, e.g., Dorie S. Goldman, "Down for La Raza": Barrio Art T-Shirts, Chicano Pride, and Cultural Resistance, 34 J. FOLKLORE RES. 123 (1997). 59 See MAYNARD, supra note 47; see also CLOTHING AND DIFFERENCE, supra note 47. 60 See, e.g., DICK HEBDIGE, SUBCULTURE: THE MEANING OF STYLE (Terence Hawkes ed., 1979); TED POLHEMUS, STREET STYLE: FROM SIDEWALK TO

101 See H.P. Bovenkerk et al., Preparation of Diamond, 184 NATURE 1094 (1959); F.P. Bundy et al., Man-Made Diamonds, 176 NATURE 51 (1955).

105 JACQUES PÉPIN, JACQUES PÉPIN FAST FOOD MY WAY 58 (2004).106 See Daniel Patterson, Hocus-Pocus, and a Beaker of Truffles, N.Y. TIMES, May 16, 2007, at F1; cf.107 Ferrari S.P.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1237-38 (6th Cir. 1991). 108 Ferrari S.P.A. Esercizio Fabriche Automibili E Corse v. Roberts, 739 F. Supp. 1138, 1140 (E.D. Tenn. 1990), aff'd, 944 F.2d 1235. 109 Id. 110 See Ferrari S.p.A.

113 See Richard Boudreaux, In Italy, It's Survival of the Fakest, L.A. TIMES, Oct. 6, 2000, at E1. 114 See TIM PHILLIPS, KNOCKOFF: THE DEADLY TRADE IN COUNTERFEIT GOODS 69-70 (2005); Boudreaux, supra note 113.

-130 See, e.g., Imitating Property Is Theft, ECONOMIST, May 17, 2003, at 52, 54 (discussing improvements in counterfeiting technology). 131 576 F. Supp. 2d 463 (S.D.N.Y. 2008). 132 Id. at 485. I am grateful to Ann Bartow for calling this fact to my attention. 133 Protection for Fashion Design: Hearing on H.R. 5055 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 12 (2006) [hereinafter

143 See, e.g.,Corrigendum to Council Directive 2004/48, 2004 O.J. (L 195) 16 (EC); Council Regulation 1383/2003, 2003 O.J. (L 196) 7 (EC). 144 See, e.g., 145 See, for example, Case C-59/08, Copad SA v. Christian Dior Couture SA (Apr. 23, 2009

147 See, e.g., Boston Prof'l Hockey Ass'n v.Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004 (5th Cir. 1975); see also Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535 (11th Cir. 1985); Arsenal Football Club Plc v. Reed, [2003] EWCA (Civ) 696 (Eng.); Stacey L. Dogan & Mark A. Lemley, The Merchandising Right: Fragile Theory or Fait Accompli?, 54 EMORY L.J. 461 (2005); Jane C. Ginsburg, Exploiting the Artist's Commercial Identity: The Merchandizing of Art Images, 19 COLUM.-VLA J.L. & ARTS 1 (1994-1995). 148 See, e.g., Long-Sleeved Garment with Wristwatch Accommodations, U.S. Patent No. 7,380,287 (filed July 1, 2005); Watch Cuff, U.S. Patent No. 7,120,936 (filed June 17, 2004). 149 See, e.g., Matthews v. Wozencraft, 15 F.3d 432, 437-38 (5th Cir. 1994) ("150 See, e.g., Allen v. Nat'l Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) (Woody Allen lookalike); 151 See Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (Tom Waits sound-alike); 152 See, e.g.,

160 BENJAMIN, supra note 158, at 217. 161 539 U.S. 23 (2003). 162 BENJAMIN, supra note 158, at 221.

Id. 213 Hermès Canada Inc. v. Park, No. S046494, [2004] B.C.S.C. 1694 ¶ 44 (Dec. 17, 2004) (Can.),

253 Case C-487/07, 2009 ECJ EUR-Lex LEXIS 532 (June 18, 2009). 254 Id. ¶ 46. 255 L'Oreal SA v. Bellure NV, [2006] EWHC (Ch) 2355, [62] (Eng.); see also L'Oreal SA v. 256 See Trade Marks Directive, supra note 205. 257 Id. art. 5(2), at 29. 258 Case C-487/07 ¶ 50. 259 Id. ¶ 33. 260 Case C-252/07, Intel Corp. v. CPM United Kingdom Ltd. (Nov. 27, 2008

263 See, e.g.,Hasbro, Inc. v. Internet Entm't Group, Ltd., No. C96-130WD, 1996 WL 84853, at *264 See, e.g., Eastman Kodak Co. v. Rakow, 739 F. Supp. 116, 118 (W.D.N.Y. 1989) (finding comedian's use of stage name Kodak in connection

301 See, e.g., Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir. 2001);