Creativity without Law: Challenging the Assumptions of Intellectual Property

Creativity without Law: Challenging the Assumptions of Intellectual Property


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Behind the scenes of the many artists and innovators flourishing beyond the bounds of intellectual property laws

Intellectual property law, or IP law, is based on certain assumptions about creative behavior. The case for regulation assumes that creators have a fundamental legal right to prevent copying, and without this right they will under-invest in new work. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity, and it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation.
This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses—sensitive to their particular cultural, competitive, and technological circumstances—to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer, and thrive, in environments defined by self-regulation rather than legal rules.

Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.

Product Details

ISBN-13: 9781479841936
Publisher: New York University Press
Publication date: 02/28/2017
Pages: 304
Product dimensions: 5.90(w) x 9.00(h) x 0.90(d)

About the Author

Kate Darling is Research Specialist at the MIT Media Lab, where she advises on intellectual property issues and researches the intersection of technology, law, and society.

Aaron Perzanowski is Professor of Law at Case Western Reserve University School of Law. He is the author of The End of Ownership: Personal Property in the Digital Economy.

Table of Contents

Introduction Aaron Perzanowski Kate Darling 1

Part I Cuisine and Curatives

1 Norms-Based Intellectual Property Systems: The Case of French Chefs Emmanuelle Fauchart Eric von Hippel 17

2 An IP Lawyer Walks Into a Bar: Observations on Creativity in Cocktails Matthew Schruers 45

3 Derogatory to Professional Character? The Evolution of Physician Anti-Patenting Norms Katherine J. Strandburg 63

Part II Counterculturai Communities

4 Owning the Body: Creative Norms in the Tattoo Industry Aaron Perzanowski 89

5 Painting on Walls: Street Art without Copyright? Marta Iljadica 118

6 Subcultural Change and Dynamic Norms: Revisiting Roller Derby's Master Roster David Fagundes 142

Part III Content Creators

7 Architecture and Morality: Transformative Works, Transforming Fans Rebecca Tushnet 171

8 Internet Pornography without Intellectual Property. A Study of the Online Adult Entertainment Industry Kate Darling 201

9 Nollywood: Pirates and Nigerian Cinema Olufunmilayo B. Arewa 228

Conclusion: Some Positive Thoughts about IP's Negative Space Christopher Jon Sprigman 249

About the Contributors 271

Index 273

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