By Kal Raustiala and Christopher Sprigman C ’88 | David Chang is a chef’s chef. The genius behind the mini-empire of Momofuku restaurants in New York, Sydney, and Toronto, Chang is a culinary pioneer who takes creativity seriously—so seriously that he even has a “food laboratory” in New York’s East Village to test out new ideas. Chang has been careful to trademark some of his more famous confections, such as Cereal Milk™ ice cream, designed to taste like the sweet corn-flavored milk left in the bottom of a bowl.
But he can never stop a competitor from offering a competing version of cereal milk ice cream. The recipe is easy to find on the Internet—or in one of Chang’s own cookbooks. And it is entirely legal to copy it.
Surprisingly, chefs have almost no rights in their creations. Recipes can be legally copied by anyone, including a competitor. A dish ordered in a restaurant (such as Cereal Milk™ softserve) can be freely copied as well. And not just at home; any restaurant or ice cream parlor can serve their own version. They just can’t call it Cereal Milk™.
As any connoisseur of good food knows, great new dishes get copied all the time. Molten chocolate cake, miso-glazed black cod, salmon cornets: these dishes and many more have been widely knocked off, and today can be found in restaurants of all stripes throughout the nation. In fact, even the mass-market chain Chili’s offers a molten chocolate cake—and it’s pretty good.
Recipes are not the only creative works that can be freely and legally copied. American law also treats fashion designs as “useful articles” that are not protected by copyright. This is how a retail copycat like Forever 21 manages to knock off so many designs every month, selling their own versions—sometimes hard to distinguish from the original—for a fraction of the original’s price. Copying designs is entirely legal in the fashion world, just as copying recipes is in the culinary world.
Despite this, both food and fashion are enormous, growing, profitable, and vibrantly creative industries. And that suggests something very important about how the law treats innovation. Intellectual property law is based on the notion that copying is bad for creativity. Since 1790, American law has treated copyrights and patents as essential elements in the creative process. The reason for this is logically straightforward. It is usually cheaper to copy something than create it anew. So only if innovators are protected against imitation will they invest in new innovation.
At least that’s how the story goes.
Out in the real world, innovation doesn’t always follow this logic. At the center of an enormous amount of innovation is imitation. In some instances, copying can inhibit innovation, and rules that constrain copying are sometimes necessary. But in many cases, legal rules meant to protect innovation serve only to slow it down. Copying, in short, is often central to creativity.
How can copying be beneficial? When we think of innovation, we usually picture the lonely genius toiling away until he finally has his “aha!” moment. But in fact, innovation is often an incremental, collective, and competitive process. And the ability to build on existing creative work—to tweak and refine it—is critical to the creation of new and better things.
Once we look, we see examples all around us. Thomas Edison’s lightbulb imitated elements from over a dozen earlier bulbs. Shakespeare’s Romeo and Juliet borrowed from earlier writers—and West Side Story in turn drew heavily from Shakespeare. Apple took the idea of a mouse and an icon-based computer display from researchers at Xerox and refined it for home use.
This kind of copying and tweaking often leads to more choice—many variations on a theme—and more competition, which is good for consumers. Copying can drive new inventions, as competitors strive to stay ahead. And copying can serve as a powerful form of advertising for originators, one that carries weight because it is authentic. Copying may even grow the overall market.
We can see this dynamic best by looking at industries where copying is legal—where our intellectual property laws do not reach. Food and fashion are great examples. So too are fonts. Most of us don’t think about fonts, but there are over a quarter-million of them. And they can be freely copied, as Microsoft did when it invented Arial. Arial was a twist on Helvetica, a well-known font (and perhaps the only font to be the subject of its own documentary film). New fonts appear all the time, even as copying is easier than ever before.
Another example is American football. You may not think of football as a creative industry, but it most certainly is. The game changes all the time, as coaches look for more effective offensive plays and formations and defensive counter-strategies. Beginning with the introduction of the forward pass in the early 1900s, we’ve seen repeated instances where innovative offenses (the West Coast Offense, the spread offense, the spread-option) and defenses (the nickel, the zone blitz, the 46) have renewed the game. In all of these cases, the innovating coaches were quickly copied. And that copying, far from deterring the next round of innovation, seems to speed it. In the hyper-competitive atmosphere of pro and elite college football, coaches innovate to survive.
There are many other examples—open-source software, financial innovations, computer databases, tattoos, hairstyles, furniture, magic tricks, and even pornography—that exhibit this pattern of copying coupled to creativity. These industries do not prove that copying is always a force for good. And it is not. But they do show that the relationship between imitation and innovation is more complicated than conventional wisdom suggests. Copying can be destructive. But it can also be productive.
Just ask Apple, which is now vigorously using the legal system to squash copying, aggressively pursuing its rival, Samsung, in courtrooms all over the world. Yet from its beginning Apple was an active copier itself.
In a 1994 interview, when Apple was a tiny minnow in comparison with the leviathan it is today, the late Steve Jobs invoked Picasso’s alleged dictum that “good artists copy, great artists steal.” Jobs went on to say that at Apple, “We have always been shameless about stealing great ideas.”
Jobs was right. While he has often been invoked as a visionary, he was, as The New Yorker’s Malcolm Gladwell recently described him, “the greatest tweaker of his generation.” The freedom to copy built Apple, and gave us the great products we enjoy today.
The upside of copying has implications for how we think about our increasingly ideas-based economy. Let’s return for a moment to creative cuisine. Over the past few decades, American cookery has undergone a renaissance. Great dishes and great restaurants abound in cities both big and small, and innovative food is increasingly celebrated. All this innovation has occurred without any legal protection for the underlying creative work: the recipe. In fact, many top chefs believe that the open innovation culture of cuisine—in which young chefs apprentice with masters, copying dishes and techniques along the way—is essential to the creative vibrancy we see today.
None of this is to deny the usefulness of our copyright and patent laws. But like any good thing, copyright and patent can be taken too far. Rules about copying have an important, even essential role to play in our economy. But that role is much more nuanced than many believe. As the debate about intellectual property law grows more contentious and consequential, we should bear that lesson in mind. Major industries can survive in the face of copying—and sometimes even thrive as a direct result of it.
Christopher Sprigman C’88 is a professor at the University of Virginia School of Law. He and Kal Raustiala are co-authors of The Knockoff Economy: How Imitation Sparks Innovation (Oxford University Press, 2012).