Creative vigilantes

Magicians, chefs, and stand-up comics protect their creations without the law. What they can teach lawyers--and Congress--about the future of intellectual property

Boston Globe

By Daniel B. Smith | December 23, 2007

LAST FEBRUARY, JOE ROGAN, the beefy host of the gross-out extravaganza "Fear Factor," got on the stage at the Los Angeles club The Comedy Store and unleashed a tirade against the comedian Carlos Mencia, who sat beside him on a stool, angrily protesting. According to Rogan, Mencia had been stealing other comedians' material for years, and the only way to stop him was by making his habits widely known. This Rogan did his best to achieve; shortly thereafter, he posted a video of the exchange - liberally peppered with indecencies and spliced with supporting material - on his website. From there it spread quickly over the Internet.

For most people who caught the Rogan-Mencia incident, it was little more than a minor entertainment - another B-celebrity dust-up. But for the legal scholar Christopher Sprigman, it was clear and hitherto ignored evidence that the country's recent approach to intellectual-property law has been wrongheaded.

Over the past 15 years, the rise of digital technology and the global economy has made it ever easier to copy, distribute, and profit from the fruits of other people's creativity - from the new Fergie album spreading across peer-to-peer networks to pirated "Spider-Man" DVDs showing up on the streets of Shanghai. In response, American lawmakers have instituted increasingly sweeping laws, seeking to stymie intellectual-property theft with lengthier copyright terms and more stringent consequences for violators. Without these measures, they reason, innovators will lose money, and innovation will suffer.

In something as simple as the public outcry of a Hollywood jokester, Sprigman, an associate professor of law at the University of Virginia, sees an approach that he hopes could put the lie to this thinking, and turn the heads of lawmakers. He sees a comedian enforcing respect for originality without resorting to legislation, lawyers, or the courts. He sees intellectual property being protected - not by the strong arm of the government, but by way of the very technologies that have incited stronger laws in the first place.

"People usually talk about how the Internet destroys intellectual property," says Sprigman. "But here the Internet enforces intellectual property. It helps to protect creativity by shaming pirates."

Comedy is not the only creative industry in which scholars are finding evidence that challenges assumptions held on Capitol Hill. Over the past two years, a flurry of papers have appeared on so-called "negative spaces" of intellectual-property law - industries that receive little to no legal protection for their ideas or products, yet that continue to innovate, often at a rapid clip. Articles have already appeared about high fashion, haute cuisine, and professional magic, with another planned by Sprigman and a colleague about stand-up comedy. And already, Washington seems to be paying attention. Last July, Sprigman testified in Congress against a bill that would have tightened copyright control in the fashion industry; the fashionistas, he argued, are better off on their own.

Sprigman and his colleagues see "negative spaces" as evidence that creative industries do not necessarily need strong laws to protect their ideas and products. And although their inquiry is in its early stages, they have high hopes that the field will flourish in the coming years, and, perhaps, help restore balance to an intellectual-property system they see as dangerously out of whack.

The question of what level of intellectual-property rights should be extended to creators has dogged America from the start. Even as prodigious an innovator as Thomas Jefferson was reluctant to protect ideas too stringently, maintaining as a point of principle that "ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man." Yet Jefferson also realized that, in a world where original creations take time, money, and energy to produce but are easy to copy, creators need to be offered "incitements to ingenuity" if they are to keep contributing to the economic and creative health of the nation.

The Constitution was written to maintain this balance between private wealth and commonwealth, allowing Congress to grant to creators - authors, musicians, inventors, and so on - "exclusive Rights" to their creations "for limited Times." This formulation, the author Lewis Hyde writes, "allows a market in cultural property but also puts an outer boundary on that market."

For much of the country's history, that boundary held relatively fast, and led the country through successive waves of innovation.

Yet in the information age, where ideas play a dominant role in the marketplace, the boundary has shifted markedly in favor of private interests. This is clearest to see in the case of copyrights - along with patents and trademarks, one of the three major classes of intellectual property. In 1790, copyright protection lasted a maximum of 28 years, after which the property reverted to the public domain, where anyone was free to make use of it. Between 1831 and 1909, the term was doubled to 56 years. Today, after successive extensions passed into law by Congress - most notably, the 1998 Copyright Term Extension Act, which tacked on 20 years - copyright protection lasts on average more than a century.

"Congress is perfectly happy to give ever larger, ever stronger, ever more stringent protections to big business, often at the expense of the public domain," says Kal Raustiala, a professor of law at UCLA and the coauthor, with Sprigman, of "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design," the 2006 paper that set off the study of "negative spaces." Raustiala is a member of what has alternately been referred to as the "free culture movement" and the "Copy Left" - a diverse group of professors, lawyers, and activists that believes the expansion of intellectual-property rights is restricting the free flow of ideas, diminishing the nation's creativity, and flouting the explicit intentions of the Founding Fathers.

It's an argument that has fared well in the academy and among the technorati, but poorly in the realm of public policy. In the 2002 Supreme Court case Eldred v. Ashcroft, Lawrence Lessig, a Stanford law professor and author of the manifesto "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity," argued that the Copyright Term Extension Act was unconstitutional because it violated the requirement that copyright exist only for "limited Times." Unconvinced, the court responded that Congress has the final say on how much protection to extend.

It was a demoralizing defeat, and although it didn't diminish the visibility or vitality of the Copy Left, it did lead some of the movement's members to seek a fresh critical approach to the expansion of intellectual-property rights. In particular, it led Sprigman and Raustiala to question whether the central justification for those rights - that they are necessary to stimulate innovation - was as universal as legislators (not to mention Thomas Jefferson) seemed to assume.

"If you can show that creativity flourishes without strong IP rights, that casts doubt on the reflexive argument that we always need strong laws to stimulate creativity," said Raustiala.

Fashion seemed (with apologies) tailor-made for this purpose. It is an industry in which high-end designers have strong trademark rights, lending them protection against street vendors selling faux Louis Vuitton handbags, but very little protection over their designs - the essence of their art and their products. This would seem to be bad for creators: dresses by Dolce & Gabbana and Giorgio Armani constantly show up "quoted" on the racks of Forever 21 and H&M. Yet every year, without fail, a fresh crop of innovative designs parades down the runways of Paris and Milan.

Sprigman and Raustiala argue that piracy itself is stimulating fashion creativity (the paradox of their title) in a process of "induced obsolescence." Copying serves the purpose of spreading high-end designs into the mainstream, thus lowering the demand for those designs among the cognoscenti, who don't want to look like everyone else - forcing designers to devise the next hip thing.

"The Piracy Paradox" proved irresistible to like-minded scholars - some of whom were barely out of law school. Among them was Christopher Buccafusco, a recent graduate of the University of Georgia School of Law and the author of "On the Legal Consequences of Sauces," a study of intellectual property in American haute cuisine that appeared earlier this year in the Cardozo Arts & Entertainment Law Journal.

Buccafusco's paper, drawn from interviews with some of the country's leading chefs, including Thomas Keller of the Manhattan gastronomic mecca Per Se, revealed that not all "low-IP" sectors of the economy work the same way. As with fashion, the restaurant industry is highly innovative (witness foie gras foams and thyme-flavored ice cream), and deals in a product that has little legal protection: the individual dishes served at restaurants are not covered by copyright. But unlike fashion, piracy among chefs does not serve as a creative stimulant. Instead, Buccafusco found that chefs don't require strong laws to protect their dishes because they serve as their own intellectual-property enforcers.

"Norms against plagiarism and in favor of attribution," he writes, "seem to function vibrantly in the closely-knit culinary realm, where the esteem of one's peers and the opinions of diners work to both dissuade rampant copying and promote true innovation."

A similar dynamic exists among magicians, according to a recent paper published online by Yale Law graduate Jacob Loshin and soon to appear in the anthology Law and Magic, published by the Carolina Academic Press. An amateur magician himself, Loshin (who now clerks for a federal judge and so was unable to comment on his work), found that magicians carefully police, and ruthlessly punish, thieves in their ranks. A case in point is Val Valentino, a Las Vegas magician who, posing as the "masked magician" on a widely viewed 1998 special on the Fox network, revealed highly valued tricks of the trade. Exposed, shamed, and ostracized by his peers, Valentino fled to Brazil.

"[In] the magic community, innovation does in fact need intellectual property," Loshin concludes, in a statement that could easily apply to any one of these papers. "But it does not necessarily need intellectual-property law."

As they continue to highlight outliers in the intellectual-property world, negative-space scholars have a great many options to choose from. At the end of their paper on fashion, Sprigman and Raustiala provide a list of possibilities that includes computer databases, microprocessors, furniture designs, perfume, fireworks displays, even tattoos and hairstyles. ("Hairstyles, which typically originate with celebrities, are freely copied by barbers and hairstylists.")

Critics are quick to point out that tattoos and hairstyles do not qualify as key sectors of the American economy, and they question whether the dynamics the scholars have found in relatively intimate industries could apply in such diffuse, globalized, and popular industries as music and film - the businesses at the heart of today's intellectual-property debates.

"A world has to be sufficiently closed and intermarried for its members to enforce behavioral norms," says Jane Ginsburg, a well-known intellectual-property scholar at Columbia University. "That might work in the culinary arts, but I can't think of any huge industry that has a workable norms-based system."

Such objections, Sprigman argues, do not take proper account of the ultimate weakness of the law. He points to the music industry, in which the Internet, the iPod, CD-burning software, and other technologies have made it difficult to enforce intellectual-property rights, no matter how strong they're made. In such a situation, Sprigman says, creators can be counted on to respond, well, creatively. Madonna, for example, recently split with her longtime record company, Warner, in favor of a company, Live Nation, that emphasizes more stable revenue streams, such as concerts and merchandise.

Sprigman has identified a similar process of evolution in his current work on comedy. Over the course of 80 years, he says, stand-up has adapted to a paucity of legal protections by shifting from acts based on easy-to-steal gags (think Milton Berle and Henny Youngman) to acts based on thickly laid, hard-to-appropriate personae (Larry David, Sarah Silverman). Although episodes of piracy still occur, he says, as a whole, comedy flourishes.

Sprigman hopes that examples such as these will point to the fundamental lesson of negative spaces - that "the law is limited."

"People think of intellectual property as a way to deal with a form of market failure: without legal controls, we can expect less innovation," he says. "But in the law's absence, the market finds a way to encourage creativity."

"It is," he concludes, "an optimistic story."

Daniel B. Smith is the author of "Muses, Madmen, and Prophets: Hearing Voices and the Borders of Sanity," which will be published in paperback in March.