Negative space chef logo7/13/2023 ![]() In fact, many designers are vocal advocates against copying, and … make use of the currently limited legal tools available to curb copyists. ( argument, if correct, ought to apply to fashion trademarks and copyrights as well.) pitch their paradox as an explanation for the otherwise puzzling equanimity with which designers greet copyists. The adverse effects of copying explain why many designers oppose copying, just as they oppose counterfeiting of handbags. According to Scott Hemphill and Jeanie Suk, So where does fashion fit into discussions of the “negative space”? Perhaps the most important point to note in this respect is that the fashion industry itself seems quite motivated to escape the negative space. 16 Clearly this is an industry whose magnitude is much closer to the “copyright industries” plus pharma/chemicals. A conservative estimate is that this is a $200-billion per year field. Of course, I have so far skipped over the largest industry that negative space theorists have studied, fashion. But we can say that the pharmaceutical industry is worth $ 340 billion per year alone, 14 and that the chemical industry totals roughly $450 billion. ![]() 13 It is very difficult to arrive at similar estimates for the “patent industries” because companies in so many industries obtain large numbers of patents every year. The International Intellectual Property Protection Alliance (IIPPA), for example, estimates that the “copyright industries” alone add $1 trillion to the U.S. But compared to the estimated size of the overall IP-based economy, they represent only a small percentage of activity. 12 So, taken together, the three “negative space” industries discussed thus far total roughly $12.75 billion in revenue per year. 11 A generous estimate of the total size of the industry might be $50 million per year. 10 On the other hand, the middle tier of comics make anywhere from $400 to $2,000 per performance, with many of course working for free on open-mike events. Forbes estimates the top comedians make $139 million altogether per year. Comedy album sales average roughly $5.5 million per year, 8 and top standup comics make between $27 million (Jerry Seinfeld) 9 and $14 million per year (Kevin Hart). 7 As for standup comedy, that is a bit harder to estimate. How about tattoos and standup comedy? Tattoos are a $1.65-billion per year industry. (In reality probably the bulk of the value is in “old standard” recipes but we will leave that aside). ![]() but again to be generous let’s attribute all the value to recipes – and unique recipes at that. Naturally enough some of the value of these restaurants comes from décor, location, etc. That means a $10.6-billion per year industry. 6 Although Italian restaurants are probably in fact more numerous, we might generously estimate that fully half this category is French restaurants. European restaurants represent 14.5% of the $147.5-billion annual “full service restaurant” category. ![]() To estimate the size of the negative space, or at least that part of it that has been written about so far, we begin with French restaurants, to capture the value of French chef recipes. And third, creative responses to the lack of IP may well be clever, but they do not prove the case for “negative space.” While I do not want to minimize the creative ethnographies behind negative space studies, I would like to deflate at least somewhat the grander theoretical implications of this body of work. First, the aggregate value of the industries studied by negative space theorists is still quite small compared to the entire “IP economy.” Second, the most important industry studied, fashion, is one where many firms are actively lobbying for stronger IP protection – undermining the idea that they are more profitable in a low-IP, negative space setting. I want to make three modest points in response. From a descriptive or positive beginning, in other words, negative space theory often moves to a more normative point: the essential wrongheadedness of the traditional story that IP rights are always and everywhere necessary to call forth creative works. The absence of IP, they say, not only fails to impede creative contributions in these areas in some cases at least there is more activity. Some have taken to calling these areas, collectively, IP’s “negative spaces.” 5 From these studies, a consensus theory has begun to emerge, which holds that IP law is far less necessary than many have traditionally supposed. From French chefs 1 to standup comics, 2 and from fashion designers 3 to tattoo artists, 4 creative people working in various industries develop norms and practices that provide an adequate, and perhaps often superior, alternative to formal IP protection. In recent years, intellectual property (IP) scholars have described a number of fascinating trades and pursuits where people get along quite well without the protection of formal, enforceable IP rights. Merges, University of California at Berkeley School of Law
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