Abstract
Several recent case studies have explored industries in what Kal Raustiala and Christopher Sprigman have described as intellectual property’s “negative space”: areas in which creation and innovation thrive without significant protection from intellectual property law. These include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open source software, sports, wikis, academic science and even roller derby pseudonyms. Most scholarship in the area has focused on case studies of particular industries and social movements that occupy IP’s negative space. This Article looks deeper into the nature of IP’s negative space itself, seeking a unifying theory of what makes a type of work well suited to IP’s negative space. The emerging theory sheds light onto what may make a lack of protection preferable to protection for certain types of works and gives us a new tool for optimizing intellectual property law to promote creation and innovation.