Author Archive | Prof. Christopher Sprigman (Virginia), guest-blogging

The Knockoff Economy: Thanks! And Some Responses to Reader Comments . . .

This is our last post guest-blogging at the VC and we again want to thank our hosts. A lot of interesting comments came in, and we’ll use this final post to address some of the issues and questions raised by readers. In no particular order:

Innovation vs. Variation. A few comments argued that a lot of what we discuss in The Knockoff Economy—such as innovation in font design, fashion, or food—is not really innovation but rather than variation, and as such these cases shouldn’t be used to draw any larger conclusions about IP policy or the nature of creative incentives. So, for example, one commentator claimed that “true innovation is game-changing.”

Our own view is that this misconceives what actually happens in the world, and also is inconsistent with the way our legal system treats innovation and creativity.  In The Knockoff Economy we stress the importance of “tweaking” over “pioneering,” because we believe that in fact a lot of great innovations, even those thought to be pioneering, are really built on existing advances. A great example is one Mark Lemley has written about: Thomas Edison and the lightbulb. Edison is popularly valorized as a great pioneer, but Mark notes that there were no fewer than a dozen lightbulbs already. Edison’s great contribution was to “f[ind] a bamboo fiber that worked as a filament in the lightbulb developed by Sawyer and Mann, who in turn built on lighting work done by others.” One could say the same about Steve Jobs, whom Malcolm Gladwell recently called “the greatest tweaker of his generation.”

Of course, innovation can be game-changing, but most of the time it’s really just improving the same game, not replacing it. And our IP system, both patent and copyright, apply to both sorts of innovation. In fact, […]

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The Knockoff Economy and the Power of Performance and Brands

In our last post, we discussed a variety of industries in which we see creativity without much resort to patent or copyright law. And we offered some explanations for how low-IP creativity works, such as informal social norms and first mover advantage. In today’s post, we look at a couple of additional ways in which low-IP industries sustain creativity without heavy reliance on IP.  One has to do with the difference between product and performance.  The other relates to the surprising power of brands.

To see our first point, think about innovation in the world of cuisine. Recipes are widely copied – a fact you can confirm by looking at websites like RecipeSource and Cooks.com, which contain thousands of recipes that people have posted, many taken from cookbooks and cooking magazines. And recipes, for reasons we explained earlier, are not covered by copyright. And yet there are a lot of new recipes – cooks continue to innovate in this area despite others’ freedom to copy. Why? Well, on important reason is that the culinary industry doesn’t really rely very much on the recipe as a product. It relies, rather, on revenues from things that are harder to copy. Like restaurants. The quality of a recipe’s preparation in a great restaurant, the wonderful ambiance, the service, the entire experience of fine dining – these are all very difficult and expensive to copy. Any local sushi place can offer a miso-glazed black cod. But have you had the original at Nobu Matsuhisa’s signature “Matsuhisa” restaurant? Oh boy.

The strategy of sustaining innovation by shifting emphasis from product to performance is not confined to cuisine. The music industry – which has traditionally relied heavily on copyright law but is having an increasingly difficult time sustaining a copyright-centered business model – is […]

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The Knockoff Economy in Finance, Football, and More

In our first two posts, we wrote a bit about how two important creative industries, fashion and cuisine, do very well without much intellectual property.  Notice that we wrote “without much” IP, and not “without any”.  That’s because there is some IP that’s relevant to both. The fashion industry makes heavy use of trademark law to protect brands.  But the actual appearance of clothes – the fashion design – is almost entirely unprotected. In cuisine IP plays a similarly peripheral role. A recipe cannot be protected. The narrative that goes along with it may be, but the recipe can certainly be copied without the narrative.

So both fashion and cuisine are low-IP industries, and both are intensely creative even though others are free to copy and often do.  And as we describe in The Knockoff Economy, there are a lot of other industries that don’t rely much on IP law to motivate creativity.  We spend the first four chapters of the book taking a close look at these industries, and noting the many different ways in which they work to allow creativity to co-exist with copying — or, in some cases, even use copying as fuel for creativity.  The stories in these industries are all different, but they do fall into a few broad categories.

First, there are some that rely on informal rules against copying – “IP norms” instead of IP law.  Stand-up comedy is one of these.  In our chapter on comedy, we draw on earlier work that one of us (Sprigman) did with his University of Virginia colleague Dotan Oliar that documented stand-up comedians’ anti-copying norms and described how the stand-up community runs an informal but pretty effective community policing system to restrain copying.  Chefs, we show, have some similar copying norms, though these norms […]

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The Knockoff Economy: Copying and Creativity in Cuisine

Yesterday we introduced some of the big themes of The Knockoff Economy, and briefly explained why the fashion industry remains so creative despite having its central product—clothing designs—freely copied by any firm that thinks it can turn it a profit by aping an original design.  In the book we look at several other examples of creative fields in which copying is common. One of the most interesting and fun is the culinary world.

In this post, we thought we’d present a brief excerpt from the chapter on food to give a flavor (so to speak) of the book.  In this excerpt, we discuss the incredibly creative culinary scene that now exists, and how copyright applies (or doesn’t) to cuisine:

“The apotheosis of this trend toward extreme culinary innovation is what is often termed the “modernist cuisine” movement. Practitioners, such as Ferran Adria of the recently closed El Bulli restaurant in Spain and Homaro Cantu of Moto in Chicago, use complex and highly inventive processes to create flavored foams, liquid “olives,” edible inks, and various other savory special effects. Many of these dishes push the envelope of good taste; a few are bizarre and arguably inedible. But they are unequivocally novel, and people pay dearly to experience them.

Even outside this rarified world, however, creativity in cuisine is prized in a way that contrasts sharply with the past. Chefs frequently seek to charge jaded palates through novel combinations of flavors, produce, and technique. The Wall Street Journal, for example, noted in 2006 “a big shift in high-end restaurant culture. . . . The past decade has seen the focus shift to innovation” and away from the apprentice-driven reproduction of classic dishes that anchored cuisine (especially French cuisine) for many decades…

This tremendous output of creativity in contemporary kitchens has

[…]

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The Knockoff Economy: How Imitation Sparks Innovation

First, many thanks to Eugene and the rest of the VC team for inviting us to guest-blog this week.

The Knockoff Economy is about copying, and specifically about how copying, copyright, and creativity mix in a set of somewhat unusual industries—from fashion to food to football. Though our main focus is copyright, we also talk a bit about patent and other forms of intellectual property (IP).

As most VC readers know well, the American system of IP is not aimed at fairness or generally grounded in moral rights. It is a government intervention into the market aimed at precluding some forms of competition—those based on copying other innovations. Competition via copying is barred (or severely limited) as a way of ensuring that originators have a strong incentive to innovate in the first place.

We should say up front that we generally agree with this approach. We think that IP laws are necessary. The interesting and important question is how much IP protection is necessary to spur creativity and innovation.

In some cases, we argue, the answer is very little. And that has big implications for our IP policy, which has tended, over the last 200 years, to get ever-stricter and broader.

Now, savvy readers will recognize that law professors (especially liberals like us) criticizing IP law is right up there with dog-bites-man as a news story. What we do in the Knockoff Economy that is different is that we approach this issue in, what we believe, is a novel way.

Rather than look at how, say, copyright works (or doesn’t) in the publishing or film industries, we look at creative industries where there is no copyright protection, or where that protection is, for practical reasons, not used. And what we find is that in many of these industries, creativity […]

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