INTELLECTUAL PROPERTY AND THE MANUFACTURE OF AURA.

• Author: Bechtold, Stefan

TABLE OF CONTENTS I. INTRODUCTION 293 II. THE PRODUCTION OF AURA 301 A. Benjamin's Concept of Aura 301 B. Authorial Narratives: Vitra, Birkenstock, and Giacometti 306 C. Place-Narratives: Geographical Indications in the Production of Food, Wine, and Spirits 324 D. Originality Narratives: Thomas Kinkade's Art, and NFTs 330 III. AURA AND THE PROGRESS OF SCIENCE AND USEFUL ARTS 343 A. Aura and Enriched Objects 343 B. Aura and Market Forces 348 C. Aura and Unintended Consequences 353 IV. CONCLUSION 357 "SOME COMPANY RECENTLY WAS INTERESTED IN BUYING MY 'AURA'. THEY DIDN'T WANT MY PRODUCT. THEY KEPT SAYING, 'WE WANT YOUR AURA'. I NEVER FIGURED OUT WHAT THEY WANTED. BUT THEY WERE WILLING TO PAY A LOT FOR IT. SO THEN I THOUGHT THAT IF SOMEBODY WAS WILLING TO PAY THAT MUCH FOR IT, I SHOULD TRY TO FIGURE OUT WHAT IT IS. I THINK 'AURA' IS SOMETHING THAT ONLY SOMEBODY ELSE CAN SEE, AND THEY ONLY SEE AS MUCH OF IT AS THEY WANT TO. IT'S ALL IN THE OTHER PERSON'S EYES." --ANDY WARHOL, THE PHILOSOPHY OF ANDY WARHOL FROM A TO B AND BACK AGAIN 77 (1975) I. INTRODUCTION

In his famous 1936 essay, The Work of Art in the Age of Mechanical Reproduction, (1) Frankfurt School social theorist Walter Benjamin identified the authenticity of a work of art with the existence of an original art object: "The presence of the original," Benjamin wrote, "is the prerequisite to the concept of authenticity." (2)

By this Benjamin meant that the foundation of an artistic work's authenticity and also much of its aesthetic power reside in a particular physical embodiment understood as original. "Even the most perfect reproduction of a work of art," Benjamin asserted, "is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be." (3) And that means that technology, like the camera, which permits artistic works to be extracted from that singular physical embodiment and then copied and distributed, dissolves a work's authenticity and deprives it of much of its aesthetic authority. (4)

This unique attribute of the art object, this "halo of preciousness" (5) that marks it as authentic, is what Benjamin refers to as its "aura":

The situations into which the product of mechanical reproduction can be brought may not touch the actual work of art, yet the quality of its presence is always depreciated... In the case of the art object, a most sensitive nucleus--namely, its authenticity--is interfered with whereas no natural object is vulnerable on that score. 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. Since the historical testimony rests on the authenticity, the former, too, is jeopardized by reproduction when substantive duration ceases to matter. And what is really jeopardized when the historical testimony is affected is the authority of the object. One might subsume the eliminated element in the term "aura" and go on to say: that which withers in the age of mechanical reproduction is the aura of the work of art. (6) Benjamin's concept of aura has been immensely influential in contemporary art theory, even though (or perhaps in part, because) he left the concept half-formed. In this Article, we pursue Benjamin's seminal idea and consider how it applies in today's digital environment where reproduction technologies have grown immensely more powerful. Contrary to Benjamin's expectations, it turns out that ubiquitous reproduction, both mechanical and digital, has not led to the withering away of aura. It has, if anything, strengthened our desire for auratic experience and has also provoked new strategies to produce and sustain aura or some simulacrum of it. (7)

We describe an environment in which artifacts are promiscuously reproduced but where aura persists or is even manufactured. Moreover, we show that aura and strategies to produce it are not confined to works of fine art. Producers seek to create an auratic experience for works of artisticcraftsmanship or even for more mundane consumer products--tables, chairs, shoes, automobiles, or bottles of wine. Nor are strategies for producing auratic experience necessarily connected to the identification of an original or authentic copy. In fact, in today's world where technology proliferates copies by design, we (perhaps predictably) see efforts to produce aura without privileging any particular copy of a work. (8)

Perhaps the persistence of aura should not be surprising: It's been more than a quarter-century now since cultural historian Hillel Schwartz pointed out in The Culture of the Copy that "[t]he more adept the West has become at the making of copies, the more we have exalted uniqueness. It is within an exuberant world of copies that we arrive at our experience of originality." (9) And yet the extent to which this experience of "originality" has moved beyond singular- or limited-production works of art to works of craft and even mass-produced consumer products is noteworthy.

In Part II of this Article, we will outline several examples of the modern manufacture of aura. In all these cases, auratic experience is engineered through a combination of reproduction techniques, social norms, community building, and interlocking business and legal strategies. Most of these strategies leverage intellectual property (IP) protections in some way. This last point is important for our purposes here, for neither the connection between IP and the production of aura nor the implications of that connection for the justification of IP rights have been fully explored.

In Part III, we inquire whether IP's connection to auratic narratives can serve as another consequentialist justification for IP--at least for copyrights, design patents (as opposed to utility patents), trademark rights in product design (often referred to as "trade dress"), and trademarks in general. (10) In the case of patent and copyright, the consequentialist justification frames legal restrictions as the solution to the problem of underproduction of new inventions and creative works that unrestrained copying would otherwise (in theory) produce. (11) In the case of trademark, the consequentialist justification focuses on the provision of information to consumers: trademarks "help[] consumers identify goods and services that they wish to purchase, as well as those they want to avoid." (12)

The Supreme Court made that point, with an added note of skepticism, in its 1942 decision in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co. (13) Trademarks, the Mishawaka Rubber Court said, are "a merchandising shortcut which induces a purchaser to select what he wants,or what he has been led to believe he wants." (14) This notion--using trademarks "to induce a purchaser to select... what he has been led to believe he wants" (15)--is a faint echo of a debate (very much alive in 1942 but since mostly forgotten) between those who believed that trademarks are a pro-social tool for providing information to consumers (who would then act on their exogenous preferences with more certainty and dispatch), (16) and those who countered that trademarks are often used by producers to create preferences--specifically, preferences for elements of product differentiation, like branding or product design, used by producers to reduce competitive pressures in markets for a wide variety of goods. (17) A commentator writing in 1943 captures this producerist account of trademarks:

It can safely be said that trade-marks, like patents and copyrights, have their monopolistic aspects, because it is one of the functions of trade-marks to lift the product bearing a mark out of its general class and to place it into a class of its own, thus eliminating competition of other-goods, because the public believes that there is nothing "just as good." (18) The pro-social understanding of trademarks as a vessel for providing information to consumers has almost entirely eclipsed the darker producerist account; (19) although, as we shall see, it re-emerges in connection with the auratic use of IP.

Note that aura, as we use the term here, is not the same as distinctiveness, the quality that trademark law is meant to foster and protect, although the two concepts are importantly related. Trademark law considers an indicium (e.g., a word, symbol, or sound) distinctive when it is used by consumers to identify the source--i.e., the producer--of a particular product or service. (20) Accordingly, the word "NIKE" or the "swoosh" symbol, identifies for consumers the producer of a particular athletic shoe. In this case, the mark identifies the shoe as "authentic" in that particular sense of connection to source. A mark may also come to stand for certain qualities that consumers associate with a product. The "MERCEDES" mark, for example, has strong connections in the minds of many consumers to qualities like luxury and wealth. (21) One way to think of the strategies to manufacture aura that we discuss here is as a merger of the distinctiveness function of trademark law with the concept of authorship that underlies copyright law. The result, if the merger is successful, is an alchemy that transforms a base object into a noble one by reinforcing a narrative that both distinguishes the product and elevates it by tying it to an author or, as we shall see, to a place, or by turning a mass-produced copy into a singular artifact.

In most (but not all) of the cases we will analyze here, IP is employed as a tool to help create and control a narrative about a product that is mass-produced and where copies are, in principle, indistinguishable. (22) The narrative is built as part of a bid to instill that product, in all its individual copies, with aura. For example, and as we shall discuss at greater length later, the Swiss furniture producer Vitra labors to remake mid-century modern furniture designs, previously...