weekly feature | Aug 18, 2021 |
Are knockoffs really so bad?

Knockoffs are a delicate subject. Since the anonymous Instagram account @DesignWithinCopy began posting pointed accusations of intellectual theft a few months ago, they’ve only gotten more so. But whether you think calling out alleged copies is righteous or vicious, there’s a widespread agreement in the design industry that copycatting is, in a general sense, “bad.” NYU law professor Christopher Sprigman has spent the past 15 years arguing the opposite.

In 2005, Sprigman began discussing a peculiar subject with his childhood friend Kal Raustiala: When they would go shopping for clothes, almost everything looked the same. “How is it that apparel manufacturers get away with producing so many clothes that look alike?” Sprigman remembers the two wondering aloud. “The answer is that copyright law in the U.S. doesn’t apply to ‘useful articles’ like clothing. Given that, how can you explain the fashion industry’s long boom?”

Are knockoffs really so bad?
Christopher SprigmanCourtesy of Christopher Sprigman

That conundrum—no copyright law, plenty of creativity—sparked a career-long investigation into whether intellectual property protection helps industries or hurts them. His research has taken him through a wide variety of fields, from standup comedy to cookbooks to roller derby, and of course, furniture. Largely, Sprigman has found that copying does more good than harm, an argument he made in his 2012 book with Raustiala, The Knockoff Economy: How Imitation Sparks Innovation.

After exploring the fallout from @DesignWithinCopy and taking a deep dive into the law and culture around knockoffs, Business of Home spoke to Sprigman to get a provocative new perspective on the subject of copycatting. He talked about why the conventional narrative about copyright law is flawed, the connections between trademark enforcement and class, and that Emeco lawsuit.

Your research on knockoffs started with the fashion industry. Give me a sense of what you found.
Copyright doesn’t really protect much of what [fashion designers] do—there is, in fact, a ton of copying, and yet they’re going from strength to strength. They’re making money and innovating; there are new entrants and lots of wealth being produced. We started thinking about that, and it led us to the idea that, in the fashion industry at least, copying is actually necessary for innovation.

How so?
The central feature of the fashion industry is a trend. And how do we know when something is on trend? We see it widely copied, and then the copies help set the trend by communicating to people what’s in fashion. Then, as copying increases and increases, it helps kill the trend by making the design too ubiquitous for early adopters. They drop off and start picking up on the next trend that copying is helping to set. Copying is part of what drives the fashion cycle, and the fashion cycle is what makes money for the fashion industry.

Right, and that conclusion goes against the conventional wisdom around copyright law.
The theory we’ve been living under for a long time is that we have copyright and patent [protections] because we want innovation. If people are free to copy, who would innovate? That’s the orthodox theory. On a certain level, it sounds very sensible. What we started to do was test the theory by looking at areas where the law didn’t actually do what the theory says the law should do.

I’ll give you an example: We’re all free to record a performance of someone else’s musical composition—a cover. Bob Dylan writes a great song, and if any Joe, Jack or Jill wants to record it, they can do it. They don’t have to get Bob Dylan’s permission; they just have to pay him a pittance per copy they sell, or per stream. The orthodox justification of copyright is: “We don’t want that. We want people to negotiate and get the price right.” It says we should have a problem with undersupply of songs, but we do not have that problem.

I get how the legal structure may be flawed, but isn’t there also just an instinctive dislike of copycatting? Even on the playground, if someone wears the same shirt, kids will say, “Copycat!”
I think there is. There has been some research that shows kids develop a notion of what copying means when they’re pretty young. But I think a lot of our notions are weird, right? We have a lot of instincts about things that we curb because we think the instincts are not socially productive.

How did I learn to speak? I learned to speak by copying. How did I learn to play guitar? I learned by copying. How do people learn to paint? To some degree, they learn by copying. I think the truth about achievements in arts and letters is that we start by copying, and if we have talent, we end up producing—[but] the thing we produce is almost never fully our own. It always bears the imprint of stuff we came before. It complicates the narrative around “Copying is bad. Originality is good.”

Are knockoffs really so bad?
Emeco's Navy chairEdward O'Neill/Adobe Stock

That implies good-faith intentions on everyone’s part. The idea that you start by copying with the intent to eventually create your own original work makes sense, but isn’t a lot of copycatting just a lazy shortcut to making money?
I don’t actually agree with that. I think this is where creative people have a bit of a problem. The most powerful force for human achievement, I think, is competition. To a certain extent, IP rights are a restraint on competition. They’re strong medicine, and sometimes you need strong medicine—but you should be careful about it, and we’re not that careful about it. We tend to hand [intellectual property rights] out like candy, and there are anticompetitive effects that come out of that.

Let me give you an example: I decide to open a cafe in the neighborhood that doesn’t have one, and that people thought could never support one. Turns out, I had a good insight and the neighborhood can support a cafe. You then open a cafe across the street from me. I had an insight and I made an investment, but we do not protect that [under the law]. There, we see very clearly that competition is good. It’s good to have two cafes in the neighborhood!

Whether it’s illegal or not, there are people who wouldn’t like that new cafe because it’s a copycat.
Sure, producers never like consumers getting a better deal. The producers will conspire against the consumers, as [18th-century economist and philosopher] Adam Smith said, given the slightest opportunity. [But] producers aren’t the only story. Consumer welfare is a story. Take the fashion industry. Sometimes people in the fashion industry complain about copying, but the truth is the fashion industry is extremely successful not only in making money by selling expensive things to rich people, but at making money by selling less-expensive things to not-rich people.

We do have access to fashion in the U.S. for people who aren’t rich. And that’s actually really important, because in a society increasingly stratified by income, it’s important that people who aren’t rich have access to clothing that’s fashionable. It’s important that they be able to dress the part. That’s the social benefit.

In your work, you make a very convincing argument for why copying is good for the health of an overall industry. But isn’t it objectively bad for the person who’s getting ripped off?
You have to think for a moment: What does it mean to get ripped off? If I make a great recipe and someone copies my recipe, am I being ripped off? Intellectual property law doesn’t think so, because recipes aren’t copyrightable. If I write a poem and someone copies a poem, am I getting ripped off? Yes, because IP law thinks I am. It’s kind of situation-specific.

Let me give you an example from the design industry that comes up a lot: There’s a small company that produces a high-end sofa. A designer takes a client to see the sofa, and the client loves it but doesn’t want to pay the price. The designer then goes to a workroom to make a replica and sells it to the client for a lower price.
My reaction is: I don’t like that. But would I sic the law on it? No. Because the minute you start siccing the law on it, the real story is very different. You get Emeco making the Navy chair—a chair that’s been ubiquitous since World War II, that’s not associated with any one company, but is kind of a generic period piece. Going to the patent and trademark office and getting rights on that—again, because the patent and trademark office gives out rights promiscuously—and you get them trying to sue competitors out of business so that a staple article of commerce that should be more affordable to a wide range of people becomes more expensive. [Editor’s note: In 2012, Emeco sued RH for making a look-alike of the Navy chair. The case settled in 2013; as part of the agreement, RH agreed to cease selling the alleged knockoff.]

[Emeco] dresses it up with a whole bunch of bullshit about how, ‘If you drop [the chair] off a skyscraper, it won’t break!’ But the truth is, people don’t drop chairs off of skyscrapers. That’s not the criterion for a piece of furniture in a suburban living room.

This is a much bigger story, frankly, than the person who has a skinflint client who wants to save a bit of money and has a workshop bang up a replica. Think about it: To protect that manufacturer serving rich people—to make sure the rich person pays $20,000 instead of $12,000—[it] is going to make a whole bunch of other furniture that working-class or middle-class people might want to buy a bit more expensive. The social value of that is negative.

I want to talk about the differences between home and fashion. You make a great case for explaining why copying drives trends in fashion. Is that the case in home?
There are trends in furniture design, but they’re not as fast and they’re not determinative. Trends in fashion are basically the entire game. I don’t think they’re the entire game in furniture design at all, but I do think that we have had a ton of innovation in furniture design over the years with relatively little intellectual property protection. I see the role of IP law in furniture as largely pernicious. For example, in Europe, Vitra and other European Union–based furniture manufacturers have lobbied hard for criminal sanctions and have aided prosecutorial authorities. They want to send people to jail.

Really? Jail?
Oh, yeah. The Europeans are about IP like we have been in the past [in America] about drugs. It’s even crazier. Here in the States, you have Herman Miller attempting to do the same thing—without the jail. .... It’s kind of a joke, because a lot of the stuff they and other big high-end furniture sellers sell is not exactly new stuff. It’s Eames stuff. Or Nelson stuff. It’s what I would consider to be yesterday’s news.

But don’t they own the copyrights to those designs?
Typically not copyrights. It’s complicated. With some of the early Eames designs, the designs were patented, but those design patents ran out decades ago. These articles are largely not copyrightable—again, for the same reason that copyright only very narrowly applies to fashion, it only very narrowly applies to furniture. It’s trademark and trade dress in the U.S. doing a lot of the work, so it’s the shape of the article [they get trademark protection for]. For example, a manufacturer [like Emeco] will say, ‘This stainless steel thing, people recognize this shape as coming from a particular source.’ To me, that seems completely ridiculous. I’ve seen those chairs at pizza parlors, at bars—they’re basically ubiquitous. I don’t think of these as coming from a single source. I think they’re coming from every Tom, Dick and Harry who can make something that looks vaguely like a Navy chair.

Trademark is only supposed to protect product configurations that people associate with a single source, and a lot of these trademark claims are extremely weak. I think if they were litigated, they would fail. But they’re rarely litigated, because people get threatened and they back off. They decide it’s not worth the trouble.

I assume that people making deliberate knockoffs aren’t doing it to prove a point about copyright law, so for them it’s not worth a lawsuit on principle.
Even the word “knockoff”—it’s funny, it’s usually a word I’m comfortable with, but I’m beginning to question that in some ways. The Eames chair, for example—I don’t think anyone should have a trademark on that chair. I don’t think people associate that chair with a particular provider; they look at that chair and they say, “Oh, that’s pretty.” Any Eames chair—any chair that follows that design—should be legal. There is no canonical Eames chair. I think that idea scares people, but I think that’s the way the intellectual property system is supposed to work. It’s supposed to release creative work into the public domain after a period of time. The attempt to use trademark to stop that process is, I think, quite pernicious.

It seems like it’s a unique feature of the modern age.
The way people protected [designs in the early 20th century] were design patents. They lasted 14 years. Now they last 15 years. They come and they go. They’re expensive to get, and they often get invalidated in litigation, so they’re chancy as intellectual property assets go. It’s really the invasion of trademark that’s the story here.

Without intellectual property protections, though, isn’t there a danger that big corporations with lots of resources will simply copy every new, cool thing that comes along and you’ll get a monopoly the other way?
It’s never all or nothing. I’d be more comfortable in the world we were in when the Eames chair was patented. You go to the patent and trademark office, you go through a rigorous exam process, and if they determine it’s novel and non-obvious, you get a design patent that lasts 15 years. That’s a relatively mild IP system. The Herman Millers and Knolls of the world aren’t satisfied with that—what they want is intellectual property rights that last forever, and that’s why they’ve pressed trademark into service. That’s the problem.

You make a case in your research that even with copies, people still buy the originals—there’s an example about how even though Chili’s may have knocked off Jean-Georges Vongerichten’s recipe for molten chocolate cake, people still go to his restaurants because they love the experience. One thing that comes up in the design world a lot is that Instagram has flattened everything and consumers are only going by the visual experience—they don’t care about intrinsic qualities of the piece; they just want “the look.” Does that matter?
I don’t know. I’m wary of these statements about what consumers are like and what they’re not like. I think consumers change over time. People like to have stuff in their house that looks good, feels good and works well. I don’t think that’s changed. You have to live with the furniture; you don’t have to live with a photo on Instagram.

These people are complaining about Instagram, but the truth is, Instagram is an incredible low-cost/no-cost advertising platform for the same people complaining about what Instagram does for consumer tastes. Like every other major phenomenon, it takes away with one hand and gives with the other. The question is, What can you do to maximize the benefits from what it gives and minimize the detriment from what it takes [in order] to survive? That’s always the question.

I think a lot of the stuff about “quality” is kind of funny. The right level of quality for a lot of people is not a Mercedes. They can’t afford a Mercedes. The right level of quality is something cheaper than a Mercedes that’s still good and still works. If everyone’s determined to make a Mercedes, they shouldn’t be surprised when some people buy a used car. Look, I don’t mean to criticize, but the kind of work you do—who is the audience? It’s the producers who are the advertisers, and it’s rich people who are your consumers. Their interests are catered to by the press and by the government, but beneath those people are a whole bunch of people who aren’t those people, and their interests get ignored. Their interests are in cheap furniture that works, and their interests are worth something.

A thing that struck me when I went to Europe and toured the Vitra museum: They want to be seen as the stewards of Eames’s work, and what have they done? They have made that work expensive for people to acquire. The Eameses themselves were complex people, but they professed at least to be designing for regular people. To be stewards of that work in the full sense would be to make that work available for people who aren’t affluent, or not only people who are affluent. I don’t think that’s what they’re doing, and I don’t think that’s what they’re focused on. I think they’re focused on making money.

Homepage photo: © 3dmitruk/Adobe Stock

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