Conclusion

Chris Sprigman concludes with a discussion of IP’s “negative space.” Each of the studies in this book explores creative communities and industries that could theoretically be governed by IP law, but instead exist in a space outside of it. Together, this body of scholarship challenges the canonical justification that IP incentives are central to innovation and creativity. Drawing on his previous work on the fashion industry and stand-up comedians, Sprigman argues that the type of creation incentivized by IP is inherently limited. A lesson he distills from our growing but still incomplete understanding of creativity without law is a need to shift our focus from a preoccupation with intellectual property to a more inclusive inquiry into innovation and its many drivers, broadening our horizon and the tools at our disposal to create effective policy.

An IP Lawyer Walks Into a Bar

Matt Schruers demonstrates that from their earliest days as delivery mechanisms for medicines, to the era of patent elixirs, to today’s resurgence of craft cocktails, alcoholic beverages have been fruitful ground for innovation. Although cocktail recipes are unprotected by copyright or patent law, new cocktail recipes are far from scarce, despite the fact that these inventions can be freely copied and used by competitors. While culinary creations are regulated through informal norms, innovation in the mixological arts is driven by market strategies, in particular by cross-financing the investments made in easily copied information. Cocktails are often devised and sold as services, rather than products, as well as promotion for the spirits they contain. As this chapter colorfully illustrates, classic intellectual property theory often fails to account for market-based innovation incentives.

Internet Pornography without Intellectual Property

A notoriously innovative industry, adult entertainment has survived and thrived through every technological disruption. Kate Darling researches how the copying and sharing of digital files over the Internet has posed new challenges for content producers, effectively eliminating their copyright protection. But rather than destroy all incentive for production, this change has driven companies to reinvent their business models. Amidst some struggles, the U.S. industry has quickly shifted toward selling services and interactive experience goods, while continuing to create traditional content as a loss leader.

Owning the Body

Aaron Perzanowski’s research on the tattoo industry provides one illustration of this phenomenon. Despite generating billions of dollars in annual revenue, the tattoo industry rarely relies on formal assertions of legal rights in disputes over copying or ownership of the creative works. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. But tattoo artists opt for self-governance despite the fact that their creations fit comfortably within the scope of copyright protection. This chapter offers a descriptive account, drawn from qualitative interview data, of the social norms that have overshadowed formal law within the tattoo community. It also provides a set of complementary cultural and economic explanations for the development of those norms.

Norms-Based Intellectual Property Systems

The creations of many chefs are undoubtedly innovative. But not all valuable creativity finds a home in the IP system. Copyright law has been reluctant to embrace culinary creations, considering them unprotectable methods or processes, or perhaps useful articles—items with intrinsic utilitarian functions. Emmanuelle Fauchart and Eric von Hippel’s research documents the system of social norms among a sample of accomplished French chefs. Recognizing the value of the recipes they develop and their limited legal recourse against copying, these chefs have developed and enforced a set of strong implicit social norms that enhance their private economic returns from their recipe-related creations and maintain strong incentives for innovation in the kitchen despite the unavailability of legal exclusivity.

Nollywood

Nollywood, the Nigerian film industry, is the top producer of digital video films in the world. Funmi Arewa argues that Nigeria is an unlikely locale for the development of a major film industry given its lack of robust intellectual property enforcement. She demonstrates how Nollywood constitutes a natural experiment for creativity in the relative absence of IP protection, in which the intertwined actions of creators, entrepreneurs, and infringers all contribute to the market’s growth. Because the viral spread of Nollywood films has been a key element of success, content producers can adopt business strategies that actually harness copyright infringement by monetizing wide-reaching distribution networks.

Painting on Walls

Although graffiti images are copyright eligible in the abstract, the inherently illicit act of spray painting private property without permission complicates efforts to rely on formal law. Marta Iljadica’s empirical research on the graffiti subculture in London demonstrates that despite its illegality, graffiti writing has rules. Those rules address questions of subject matter, originality, and copying common to any expressive work. But they also extend to concerns unique to the graffiti context. Because graffiti is inextricably tied to the physical environment, it raises questions of placement: which structures are appropriate canvasses for graffiti writings and which are off-limits? And because available real estate is limited, graffiti writers must confront scarcity: Under what conditions is it permissible to cover another artist’s work with your own? So while the rules of graffiti writing parallel those of formal copyright law in some ways, they also go beyond it to confront a set of problems graffiti writers are themselves best suited to address.

Architecture and Morality

Fan fiction, a practice that sometimes attracts the ire of copyright holders, but can often lay a strong claim to fair use, is neither clearly lawful nor unlawful. Untroubled by the legal status of their creations, fans write stories, draw pictures, make movies, remix existing content, and share their works with the broader community. This practice is as communal as it is creative, and requires spaces where fan fiction authors can come together to disseminate works, connect, and collaborate. In this chapter, Rebecca Tushnet demonstrates the importance of architecture in fostering online communities. Despite being touched by copyright law, media fandom is low-IP and generally governed by the norms of its community. Their concepts of right and wrong, often subject to debate, are increasingly built into the architecture of online platforms. And those platforms, in turn, exert a significant impact on creativity without relying on law.

Introduction

This introduction provides the framework for the chapters that follow. It outlines the core assumptions of intellectual property (IP) law: that creativity cannot thrive without legal rights of exclusion, that widespread copying is inevitable without legal intervention, and that law dictates the way the public interacts with creative works. And it summarizes a collection of studies of individual creative communities that reveal how those assumptions overlook the capacity of creative industries for self-governance and dynamic social and market responses to the appropriation of information. By revealing the on-the-ground practices of a range of previously ignored creators and innovators, the studies in this book uncover communities that force us to rethink the intellectual property orthodoxy.

Subcultural Change and Dynamic Norms

Dave Fagundes explains how roller derby skaters once guaranteed exclusive use of the pseudonyms under which they compete. Roller derby names were initially a central part of this countercultural, all-girl sport. Despite the availability of trademark protection, skaters developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their pseudonyms. When the norms around name exclusivity changed over time, so did the governance regime. This suggests that regardless of law, communities can develop and evolve norms systems if they are close-knit and the norms are welfare-maximizing. Communities are especially likely to rely on self-regulatory approaches, even formal ones that require substantial investment, when membership is closely linked to individual identity.