From Punchlines to Pesto to Prada: Exploring Intellectual Property’s Negative Space

Intellectual property (“IP”) law serves as the protective cornerstone for the creative industries—an especially important one at a time when unprecedented global connectivity links so many and in the process, so greatly heightens the potential for improper takings.¹ Yet, a growing body of legal scholarship delves into a fascinating counterpoint: the “negative space” of IP.² As Kal Raustiala and Christopher Sprigman posit in their Article, The Piracy Paradox, these creative endeavors “remain creative (and consequently do not require protection) precisely because they exhibit positionality sufficiently strong that it provokes a constant stream of new innovation.”³ This space encompasses creative fields where innovation and progress flourish in the relative absence of formal legal protection.⁴ Examining these negative spaces compels us to question the traditional narrative that IP law is universally necessary for creative output.

One example lies in the realm of cuisine.⁵ Copyright law largely does not protect recipes.⁶ The core elements of a dish—like the requisite ingredients and steps—are considered beyond the scope of copyright’s protection as they are mere listings of facts and therefore are uncopyrightable ideas and not copyrightable expressions of that idea.⁷ This lack of protection, however, still does not stifle culinary innovation. In fact, the culinary world is seemingly never at a loss for creativity, with new adaptations of classic and novel dishes appearing in every kitchen in the country each day. At the professional level, chefs themselves help sustain this self-regulatory model, often readily sharing and expounding upon existing recipes.⁸

Similarly, the world of fashion thrives on a delicate balance between originality and iteration; in fact, in many ways, the fashion industry epitomizes this dynamic.⁹ While trademarks may protect distinctive logos and brand names, the key design elements of any piece of apparel often remain unprotected.¹⁰ Unlike patented inventions’ rigid blueprints, fashion thrives on fleeting styles and their constant reimagining. A designer’s “originality” often lies in their clever twist on existing motifs or their ability to weave together influences from diverse sources.¹¹ Legal protections, like overly broad copyrights or trademarks, would very likely stifle this process, turning inspiration into infringement and creativity into litigation. Such an environment would not only stifle creativity, but also homogenize the industry.¹²

Also notable, the absence of robust IP protection generally fosters accessibility in the fashion industry. Fashion thrives on diffusion, unlike for instance, expensive pharmaceuticals. Trends trickle down from high-end runways to mass-market retailers, allowing everyone to participate in the self-expression conversation of wearable art. The free flow of ideas democratizes style, making it a cultural force accessible to everyone, not just a luxury for the elite.¹³

Stand-up comedy presents another fascinating example. Jokes are typically not copyrightable, as copyright only covers a specific material expression of an idea.¹⁴ The underlying idea or punchline of many may be similar, but the reception of any given bit hinges on the ephemeral nature of performing in front of a live audience.¹⁵ Successful delivery, timing, and the comedian’s unique voice differentiate routines entirely.¹⁶ Comedians build upon a shared vocabulary of time-honored jokes. This collaborative process fosters a sort of cross-pollination of ideas that is essential to this creative form which touches so many; however, since joke theft is happening today at an alarming rate, some legal scholars are getting crafty about how comedians could secure legal protection for their content, in ways that are arguably stronger than similar efforts being made in the aforementioned industries.¹⁷

It’s not just the economy that may benefit from the acknowledgement of IP’s negative space in this way. As previously discussed, in these creative sects, a strong sense of community among its contributors often forms and contributes to fostering collaboration and the free flow of ideas.¹⁸ Such an open exchange lends itself to an arguably less litigious environment, too, finding itself less susceptible to the potential stifling effects of litigation threats and other legal battles; however, the absence of IP protection is not without its drawbacks.¹⁹ Of course, the lack of legal recourse for blatant copying can be discouraging to the production of new ideas altogether.²⁰

The concept of IP’s negative space forces the legal community—and individual creative communities, too—to critically examine the relationship between legal protection and creative output. While IP law remains essential for certain industries (as well as constituting a vitally important and sizable colloquy of legal professionals), a one-size-fits-all approach proves unworkable. Reputation, community recognition, and the inherent value of creativity itself serve as powerful motivators in the other direction. Hopefully, further official recognition of this informal approach, which acknowledges the unique dynamics of this creative space, will lead to a more nuanced and flexible framework that balances these benefits of protection with the advantages of open collaboration. All in all, by studying negative spaces, we can gain valuable insight as to alternative models for fostering innovation—which may just be sitting back and letting the artists do what they do best: create.

Michael Ecker is a second-year law student at the Benjamin N. Cardozo School of Law and a Staff Editor for the Cardozo Arts & Entertainment Law Journal. Michael comes from a lifelong background in the theatre—having worked on both the amateur and professional scenes—and has aspirations of keeping his creative roots close as he continues to chart his legal career. Academia, too, is a principal intrigue of Michael’s, coming to law school just after obtaining his bachelor’s degree in professional writing and history. Overall, his legal interests include talent representation, project production, constitutional and high-stakes civil rights litigation work.