Christopher J. Sprigman

The orthodox justification for patent and copyright laws, at least in the United States, is utilitarian: that is, both sets of legal rules are premised on the theory that only by rewarding creators with special property rights can we ensure that creations get created.

Viewed in the abstract, who could argue otherwise?  Both technological innovations and artistic works are often difficult to create but easy to copy. Absent strong property rights, copyists will free ride on the efforts of creators. This, in turn, discourages investment in new inventions and creations. In short, copying stifles innovation – and therefore innovation requires legal intervention in the form of property rights.  Right?

Well . . . maybe. Recently, a number of economists and legal scholars have pointed out a number of instances in which significant acts of creativity occur over long periods of time but without, or with comparatively little, IP law. Back in 2005, Kal Raustiala and I wrote a paper about the fashion industry, which produces new apparel designs at a fevered pace with nearly no copyright protection. Jonathan Barnett and Scott Hemphill and Jeannie Suk offer somewhat different explanations for the fashion industry’s longstanding practice of innovating without IP.  The Hemphill/Suk paper argues that perhaps the fashion industry would be better off if we introduced some narrow copyright-like protection against identical or nearly identical copies, but all agree that the best innovation policy is to largely leave the fashion industry free to create the looser “inspired by” derivative works that constitute so much of the industry’s current output and whose existence would be threatened by the introduction of the standard rules of copyright law.

Nor is fashion the only creative community that innovates without IP.  In a study of French chefs, Emanuelle Fauchart and Eric von Hippel showed that innovation in fine cuisine occurs without IP protection for virtually all recipes.  Christopher Buccafusco bolstered this finding with a paper focusing on American chefs. Other academics have studied a variety of smaller communities where creators innovate without – or with little – formal IP.  Jacob Loshin has shown how magicians create new magic tricks without resort to IP law.  A qualitative empirical study I co-authored with Dotan Oliar describes how stand-up comedians protect their investment in new jokes and police joke thievery without the aid of formal IP law.  Comedians turn instead to a set of IP norms that they’ve formulated for themselves, and which they impose, collectively, on the community of stand-ups.

Taken together, the recent scholarship, of which the papers cited above are only a sample, is beginning to sketch out a picture of what many now refer to as “IP’s negative space.”  By this term we mean those creative endeavors which could be covered fully by IP law, but, for some reason (often as the result of a doctrinal quirk or historical accident) are not.  Studying IP’s negative space is important, because if we see creativity thriving without IP’s intervention, we should look more closely to understand the conditions that allow low-IP innovation within that particular creative community.  And once we understand how particular creative forms thrive in a low-IP environment, we might reasonably ask whether the same or similar dynamics might suffice to spark innovation in markets typically characterized by heavy reliance on IP.  This is not to say that the negative space scholarship provides a direct argument for stripping IP protections from music, or motion pictures, or pharmaceuticals.  But understanding the ways in which creativity thrives without IP will at least help us evaluate the next (inevitable) plea from some creative industry or another for more IP protection.  It may also help us to understand how to re-organize creative industries, like music, for which an IP-based response to piracy has not worked.

David Fagundes’ new paper contributes to the “negative space” scholarship.  His subject is an unlikely one: roller derby – an all-female amateur competition mixing sport with spectacle, and set to a punk music soundtrack.  Derby, which has roots as far back as the 1880s, is enjoying something of a present-day renaissance.  There are now many thousands of skaters around the U.S. and the world competing in more than 400 regional roller derby leagues.

Despite its recent growth, derby remains amateur and “alternative”, and its participants are determined (so far) to remain so.  The absence of commercial ambitions may lead one to think that property rights, including IP rights, are not relevant.  But that would be a mistake.  It turns out that derby girls (their preferred moniker) care a lot about a particular form of IP.  Derby girls want exclusive rights in their “skate names,” fanciful tags like Tara Armov, Soylent Mean, Paris Killton, Sparkle Plenty, Fighty Almighty, Tae Kwon Ho, Mila Minute, and Dread Pirate Robyn, that skaters adopt to identify themselves to their fans, sometimes to keep their derby participation secret from disapproving relations or employers, and as a form of self-expression.  Derby girls are attached to their skate names.  So attached that they don’t want to share their name with any other skater, anywhere.  And name exclusivity is indeed the usual rule in derby.  How do the derby girls do it?

One thing they don’t do is resort to trademark law. Derby girls have instead developed a strong private norm of name uniqueness, a norm which is facilitated by the all-important Master Roster, a privately-administered list of skate names and their owners which was first distributed in 2005 and is now available and searchable online – see for yourself at http://www.twoevils.org/rollergirls/.  The Master Roster functions as a sort of private trademark registry, where registrsation gives priority, and priority is equivalent to a right of exclusive use.  And the norms that accompany it allow the Master Roster to stand in for the formal trademark law.  The result is a cheap and efficient system of private IP regulation tailored to the requirements of the derby girls.  Fagundes explains how the system works:

Three core principles govern derby-name regulation. First is a uniqueness requirement: Only one skater can skate under a given name. The second instantiates the idea of priority: Where two names are identical or excessively similar, the skater with the earlier claim to the name has the right to use it. The third creates elemental standards for resolving overlapping name conflicts: Where two names are reasonably similar, the second skater must ask the first skater for permission to use the name. This permission must be in writing and submitted to the Master Roster‘s administrators in order to authenticate it. Names that are very similar to preexisting names but that have been approved via written permission by the senior skater are listed on the Master Roster with the note “(cleared)”.

The system that skaters have developed for themselves is surprisingly complex, and yet apparently effective. New skaters are required to complete a probationary period before they may register a skate name.  The Master Roster contains an automatic name checker that advises if a name sought to be registered is too similar to a registered name.  And the administrator of the Master Roster has discretion to refuse to register a name if she determines it is too similar to a registered name.  When skaters retire, they are asked to inform the Master Roster’s administrator, so that their name can be made available again for use.

Moreover, the Master Roster is backed by a related set of informal but powerful enforcement norms.  Enforcement is done mostly via personal contact between skaters, and is backed with the threat of social disapproval by skaters of those who fail to comply with the naming rules.  As one skater told Fagundes:

Registering with two_evils [i.e., the Master Roster] is voluntary … but there are rules as to what can be registered. It‘s not just a free-for-all [. . .] send your name in and it‘s yours, it has to not conflict with one that‘s already on the list. And while there are no derby police that are going to tell you that you can‘t skate under a certain name, it‘s kinda like bathing. Bathing is voluntary and no one can MAKE you bathe, but if you choose not to bathe, there will be consequences from your community. Similarly, registering your name is voluntary, but there are consequences from the derby community if you choose not to register your name because you‘re using a duplicate name.

As Fagundes explains, membership in the skating community is a central value of derby for most derby girls. The result is widespread compliance, and few notable and persistent naming disputes.  But, in the few cases that reputational sanctions and shaming don’t work, there’s always violence.  Violence is a more credible potential sanction in derby because the sport itself is violent and thus retaliation can be secreted within the normal flow of a derby bout. As one derby girl put it, “there‘s no laws in place – you don‘t even have to register your derby name – it‘s COURTESY. Ref might not see you smash me in the face – but I know, and trust me baby, I‘m comin for ya.”  Added another, “I totally agree with the not stealing/copying of names… Someone once said imitation was the best form of flattery… So flatter me and then let me kick your a$$ (sic).”

One important question remains: Why do derby girls get so bent out of shape about imitation of their skate names?  The names don’t have any market value, and they don’t cost anything to acquire.  The puzzle deepens when we see derby girls objecting to use of a similar skate name even when the later user competes in a derby league hundreds or even thousands of miles away.  Competition in roller derby is regional, so why would a skater in Charlottesville, Virginia care about later use of a similar name in Los Angeles, California?  Fagundes has an answer:

Derby girls care about maintaining the uniqueness of their aliases for three primary reasons. First, names in derby function as trademarks do in the commercial world: they ensure that skaters will not be confused with one another, and that the viewing public can tell skaters apart . . . . Second, and probably more importantly, though, skaters care about the uniqueness of their names despite their lack of discernible market value because skate names are a repository for the identities that skaters work so hard to create in a subculture that is profoundly important to them . . . .  Third, . . . [f]or many skaters, then, the best individual choice from a purely selfish perspective would be to deviate from the name-uniqueness norm and grab whatever name they want (even if it‘s already in use), while everyone else respects the rules (so that there‘s no threat of someone infringing the defecting skater‘s chosen name). But in practical terms, defection tends to be a bad strategy because it threatens a cascade of noncompliance that could lead to countless people sharing your name and to general chaos and dissension in the derby world. Derby girls tempted to defect thus still tend to comply with the derby-name uniqueness norm as a second-best strategy that assures them that while they may not be able to have their ideal name, they can at least be confident that when they find a desirable, unclaimed name, it will be theirs alone.

The result is a (so far) stable system of private norms that provide an effective stand-in for formal trademark law and protect the value that derby girls place on unique skate names.  And although this may sound similar to the story of social norms regulating copying by chefs and stand-up comics, derby is, Fagundes insists, importantly different.  Formal copyright law is, for doctrinal and practical reasons, not available to protect comedians’ jokes or chefs’ recipes.  And yet trademark law, Fagundes argues, could provide effective protection for skate names.  Derby girls turn to private ordering because they choose to, not because they must.  Fagundes says that his account of private ordering in derby is thus unlike the “legal centralist” accounts of norms in stand-up comedy and cuisine.  Those accounts posit that norms arise where law cannot govern.  But in the case of derby, norms have been freely chosen over law.

I’m not sure that this last point is correct, because derby girls who want to use formal trademark law to protect their skate names face at least one potentially important limitation. Under trademark law’s Dawn Donut rule, an owner of a registered mark cannot enjoin a good-faith junior user doing business solely within a market geographically distinct from the senior user’s and which the senior user has no plans to enter. Derby is a regional enterprise, and derby girls would therefore face substantial barriers to achieving more than local protection via formal law.  But derby girls want to own their names, and they want them to be unique not just in their local area, but across the world of derby.  For this reason, formal trademark law cannot give them what they’ve achieved via private ordering.  (There is also a use in commerce issue, but I agree with Fagundes that derby girls can likely figure out a way to satisfy this requirement of trademark law.)

In any event, this is a minor quibble with a very valuable – and fun – paper.  Highly recommended.