The Knockoff Economy

by Kal Raustiala

culinary industry, 69

  dilution of, 29

  fashion, 5, 29

  functions of, 195

  restaurant name, 71

  Trademark Act of 1870, 196

  Trademark law

  brands protected under, 195

  fashion designs and, 29

  fonts and, 149

  goal of, 5

  history of, 195-96

  purpose of, 195

  “trade dress” protections, 29-30

  Trends

  copying and, 174

  fashion, 40-41, 47-49, 54, 155, 174

  font, 154-55

  music, 176

  Triangle Shirtwaist fire of 1911, 23

  Trillin, Calvin, 156

  Trotter, Charles, 77

  Tufano, Peter, 159

  Tweakers/tweaking

  in art world, 250n12

  compensation for, 145

  computer programming industry example of, 136-38, 189

  copyright protections against, 143-45

  creativity associated with, 142

  of databases, 165-66

  in font design, 152

  in football, 132-36, 138, 189

  industrial revolution and, 142

  laws of, 142-45

  licensing of, 144

  in music industry, 139, 141, 208

  of open-source software, 187

  patent law and, 143

  Twitter, 9

  2 Live Crew, 74

  Two Pesos v. Taco Cabana, 70, 180, 198

  Typefaces, 146

  Ueda, Kazuo, 94-95

  Ugg, 42

  “Unfair competition,” 70-71, 165

  United States

  Constitution

  innovation protections in, 5-6

  intellectual property protections, 5

  cuisine in, 60-61

  fashion industry in, 23-24

  United States of Arugula, The, 60

  University of Florida, 135

  “Useful articles”

  clothing as, 27

  food as, 68

  Valenti, Jack, 16, 172

  Valentino, Val, 121

  Van Morrison, 141

  Vanguard Corporation, The, 124-25

  Vaudeville, 99

  VCR, 16-17, 172

  Veblen, Thorstein, 39

  Versace, 24

  Vinyl records, 228

  Vogue, 25, 48

  Volker, Paul, 156

  von Furstenberg, Diane, 24, 35

  von Hippel, Eric, 78-80, 84, 86, 115

  Vongerichten, Jean-Georges, 63, 175, 244n14

  Vreeland, Diana, 24

  Wale, 223-24

  Wall Street Journal, 88

  Walmart, 25

  Walsh, Bill, 128-29

  Wang, Vera, 51

  Waters, Alice, 61

  WD-50, 73

  Wellington Management Corporation, 124

  West Coast Offense, 128-29

  Westlaw, 162, 193-94

  What Not to Wear, 48

  White-Smith Music Publishing Co. v. Apollo Co., 140

  Wickens, Robin, 72-74, 76, 80, 82, 190

  Wikipedia, 185-86

  Williams, Robin, 112

  Wind Done Gone, The, 74, 144

  Wintour, Anna, 47

  Wishbone football formation, 133

  Wong, Kaisik, 37, 50

  World War I, 23

  World War II, 23

  World’s Fair, 60

  Wright, Steven, 102

  Wyche, Sam, 13, 128

  Xerox, 15

  Yi Qian, 200

  Yogurt Land, 5

  Yorke, Thom, 224

  Youngman, Henny, 100, 247n6

  Zagat, Nina, 60

  Zagat, Tim, 60

  Zara, 25

  Zone Blitz, 129

  Zune, 220-21

  * No one will be surprised that Faviana and its brethren do not stop at movie stars; detailed knockoffs of Kate Middleton’s royal wedding dress, and even sister Pippa Middleton’s bridesmaid dress, are available as well.

  * When we refer to intellectual property in this book, we principally mean patent and copyright—the two forms that are focused on providing incentives to innovate. Trademark law has a different aim: to protect consumers by ensuring that they are buying what they think they are buying. We’ll say more about trademark later in the book.

  * One joke is about the strange names that parents give to their kids. A second focuses on how people get tongue-tied in moments of panic. And a third muses on the travails of having an itchy rear end.

  * Smart defenders of rules against copying note—correctly—that these rules are not just aimed at creation but also at distribution. We say more about the role of intermediaries in the chapters to come.

  * Valenti did not stop there. The VCR, he predicted, would simply destroy Hollywood: “Now, we cannot live in a marketplace, Mr. Chairman—you simply cannot live in a marketplace, where there is one unleashed animal in that marketplace, unlicensed. It would no longer be a marketplace; it would be a kind of a jungle, where this one unlicensed instrument is capable of devouring all that people had invested in and labored over and brought forth as a film or a television program, and, in short, laying waste to the orderly distribution of this product.”

  * Eric Wilson, “O and RL: Monograms Meet,” New York Times, October 27, 2011. Those present say that Lauren seemed to be at least partly joking, but of course what makes the quip funny is the knowledge that knockoffs are such a pervasive part of the fashion industry. And Lauren, a Jewish kid from the Bronx who built a spectacular career reinterpreting fashion designs associated with the WASP aristocracy, may well have hidden the truth in a joke.

  * Dana Foley and Anna Corinna nonetheless became poster children for a thus-far unsuccessful effort to ban fashion design copying, with Foley appearing alongside New York Senator Chuck Schumer at a press conference touting his proposed Design Piracy Prohibition Act. As we explain later, Congress has periodically considered, and thus far rejected, revising copyright law to address fashion designs. In December 2010, Schumer reintroduced this bill, recast as the Innovative Design Protection and Piracy Prevention Act. Hearings on a companion bill were held in the House in July 2011; as of this writing, the bill has not moved to a vote.

  * This was also the birth period of standardized clothing sizes; in 1939 the US Department of Agriculture took the measurements of 15,000 women in an effort to arrive at standard sizes (each woman underwent 59 discrete measurements). Standardized sizes were ubiquitous by the 1950s.

  * In touting the bill, neither the sponsors in Congress nor Steven Kolb, the head of the CFDA, denied that the American fashion industry was in great shape. In the press release trumpeting the act’s introduction, Representative Goodlatte noted that “America’s fashion design industry continues to grow.” Likewise, Kolb declared that the United States was “the world leader in fashion” and nation’s fashion industry was “growing steadily and adding jobs to our domestic workforce.”

  * Those concerned about copying have been making this claim since America was enduring Prohibition, and while it may have some degree of truth, we doubt it is pervasive or systematic—if for no other reason than that a truly accurate ability to predict what fashions will sell in advance would be a remarkable skill coveted by any buyer for a large department store or chain. Indeed, anyone who possessed this preternatural ability would likely earn more money picking the eventual fashion winners and selling them than actually doing the work of making copies themselves.

  * The use of clothing to signal status is ancient; in her exploration of the luxury goods industry, Deluxe: How Luxury Lost Its Luster, Dana Thomas quotes an antiquities expert at the Getty Museum in Los Angeles who asserts that debates over status-signaling via apparel date back almost 3,000 years. The many “sumptuary codes” that once limited rights to wear certain clothing to members of particular professions or social classes are one manifestation of this long-standing concern.

  * Indeed, against all odd
s Uggs have appeared in some fashion-driven stores. In 2010 the window of Fred Segal on Melrose Blvd, ground zero for many fashion-conscious shoppers in Los Angeles (and less than a mile from the Robertson Boulevard site of the Lohan car crash), featured a large painted sign trumpeting the arrival of new styles of Uggs.

  * This research was conducted with restricted access to BLS data. The views expressed here are our own and do not necessarily reflect the views of the BLS.

  * In the film, Meryl Streep’s character (reportedly an approximation of long-time Vogue editor and fashion industry kingmaker Anna Wintour) berates the fashion magazine intern played by Anne Hathaway for her lack of respect for the industry’s hidden influence over her style choices: “You go to your closet and you select… I don’t know… that lumpy blue sweater, for instance, because you’re trying to tell the world that you take yourself too seriously to care about what you put on your back. But what you don’t know is that that sweater is not just blue. It’s not turquoise. It’s not lapis. It’s actually cerulean. And you’re also blithely unaware of the fact that in 2002, Oscar de la Renta did a collection of cerulean gowns. And then I think it was Yves Saint Laurent … wasn’t it?, who showed cerulean military jackets?… And then cerulean quickly showed up in the collections of eight different designers. And then it, uh, filtered down through the department stores and then trickled on down into some tragic Casual Corner where you, no doubt, fished it out of some clearance bin. However, that blue represents millions of dollars and countless jobs and it’s sort of comical how you think that you’ve made a choice that exempts you from the fashion industry when, in fact, you’re wearing the sweater that was selected for you by the people in this room from a pile of stuff.”

  * To all this, Vera Wang offered her own riff on the famous “nobody knows anything” line of Hollywood screenwriter William Goldman: in fashion, she said, “Nothing has never been done before.”

  * Not to mention the venerable Grand Central Oyster Bar, which opened its doors (and raw bar) to shellfish lovers in 1913. Perhaps worth noting too is that in a recent visit to Pearl Oyster Bar, a waiter, asked to describe the Caesar salad at issue in the suit, said it was “a normal Caesar, nothing different about it.”

  * LaDou went on to develop the menu for the very successful California Pizza Kitchen, as well as start his own restaurant, Caioti Pizza Café. In a bizarre twist Caioti became most famous not for its pizza but for a different innovation: its salad, known as “The THE Salad” (with a copyright symbol appended) which is alleged to have supposedly labor-inducing qualities and is often consumed by past-due pregnant women from all over Los Angeles.

  * Though Nobu Matsuhisa is informally credited with inventing this dish, insiders note that it is a traditional preparation for black cod in Japan. See, for example, Mark Bittman of the New York Times: “Black cod with miso was not invented by Nobu Matsuhisa, the chef at Nobu in Tribeca, but he certainly popularized it.” Mark Bittman, “The Minimalist,” New York Times, April 14, 2004.

  * A fascinating case is that of “food artist” Jennifer Rubell, whose shows, or installations, include paintings that pour cocktails out of spigots and “honey paintings” created by 50,000 bees. Art, or dinner? The first is copyrightable, the second not. Rubell also worked for a time as the “vegetable butcher” in Mario Batali’s Eataly store in Manhattan.

  * The one-time Frugal Gourmet, famous to many in the 1980s and ’90s for his popular televised cooking show. (And presciently invoked by the Beastie Boys on their 1992 Check Your Head album: “I’ve got more spice than the Frugal Gourmet.”) After sexual assault charges were raised against him by two of his teenage male assistant chefs, Smith and his show disappeared from view.

  * Trademarks sometimes show up in the cooking world in ways you wouldn’t expect. For example, Food Network star chef Emeril Lagasse’s stock phrase “Kick it up a notch!” is actually a trademark owned by an oil and gas company from Sugar Land, Texas.

  * Those well versed in cuisine would have noticed the review mentioned a dish strikingly similar to one made famous in the United States by Daniel Boulud (though some discern an even earlier provenance in France): “A piece of mulloway—the farmed variety from the same South Australian producers who send us the Hiramasa Kingfish—is roasted with crisp potato ‘scales,’ sat upon creamed leek and finished with a tart, fruity Barolo sauce with just the right level of acid for the fish.” Like many other noteworthy gustatory creations, this one is now found at many fine restaurants around the world.

  * The court in The Wind Done Gone case seemed to (perhaps intentionally) misread the book—the Randall work was more frontal assault on the morality of Gone With the Wind than any sort of parody. In any event, the court’s fair use ruling led to a settlement favorable to Randall, under which Randall’s publisher made a donation to Morehouse College, a historically black college in Georgia. The book’s cover has a large red circle on it that reads “The Unauthorized Parody.”

  * In fact, Harrison was found liable for copyright infringement in Bright Tunes v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976).

  * In the fabled and influential (at least in France) Michelin Guide, forks are given to “good gastronomic restaurants” that are generally good values. Stars, however, are the true coin of the realm, which, Fauchart and von Hippel note, chefs have likened to “winning an Olympic medal.”

  * The distant past provides an interesting counterexample. The first recorded evidence we have of an IP system comes from third-century AD Greek author Athenaeus, who, quoting an earlier writer, reports that in the sixth century BC, the inhabitants of Sybaris, the largest of the ancient Greek city-states, enforced short-term exclusivity in recipes:

  If any caterer or cook invented a dish of his own which was especially choice, it was his privilege that no one else but the inventor himself should adopt the use of it before the lapse of a year, in order that the first man to invent a dish might possess the right of manufacture during that period, so as to encourage others to excel in eager competition with similar inventions. Athenaeus, The Deipnosophists, Vol. 5, Charles Burton Gulick, trans. (Harvard University Press, 1927), 348-49.

  * The same might be said about contemporary art: innovation doesn’t sell on a mass scale or even a moderate one. Thomas Kinkade is surely America’s favorite (recently deceased) artist; his work is said to hang in 5% of American homes. But the self-proclaimed “Painter of Light” (dubbed “the King of Kitsch” by the British newspaper The Independent) never has been classed among the avant-garde.

  * And, in a stroke of genius born of proximity, you can order Crif Dogs and waffle fries from inside PDT, served to you thru an even-tinier trap door in the wall behind the bar. Some of the dogs served here are named after famous chefs—including regular patron David Chang of Momofuku, whose signature dog is covered in a kimchi relish.

  * We can’t leave out the notorious McNuggetini, made with vanilla vodka and a McDonald’s chocolate milkshake, with the glass rim coated in barbecue sauce and a Chicken McNugget garnish slapped on. For an instructional video (watched nearly 150,000 times), see www.youtube.com/watch?v=iX8Hzxu7C1g. We draw the line at the Ham Daiquiri, however.

  * Interestingly, Eben Freeman, despite his dissatisfaction with the limited IP protection available for cocktails, has a video in which he demonstrates the Hard Shake, as taught to him by a disciple of Ueda. http://videos.nymag.com/video/Eben-Freemans-Hard-Shake#c=XR4JYD0V7W83M87K&t=Eben%20Freeman%27s%20Hard%20Shake.

  * The joke in question was about the security wall proposed between the United States and Mexico, meant to keep out illegal immigrants. The punch line: “well, who’s gonna build that wall?” We say more about this joke later in the chapter.

  * Diller also reworked her jokes frequently. One index card in the file featured a joke about the law. “What has 18 legs, 9 heads, and 4 boobs?” she wrote. Punch line: “The Supreme Court.” She then crossed out the original joke and rewrote it in pen below, reflecting changes on the Court
. “What has 18 legs, 3 boobs, and one black asshole?”

  * Of course, there remain a number of comedians who specialize in the older one-liner style. But even with modern purveyors of the one-liner, there is an emphasis on persona and the performative elements that establish persona, such as Steven Wright’s monotonic delivery of nuggets of first-person surrealism. In short, contemporary stand-up tends to be pretty clearly stamped with the persona (whether real or invented) of the comedian actually on stage.

  * Indeed, whereas once the most trusted newsman in America was Walter Cronkite, today it may well be a former stand-up comedian: Jon Stewart of the Daily Show.

  * Robin Williams, who has faced long-standing and repeated allegations of joke stealing, described the experience in an interview in Playboy magazine in 1992: “Yeah, I hung out in clubs eight hours a night, improvising with people, playing with them, doing routines. And I heard some lines once in a while and I used some lines on talk shows accidentally. That’s what got me that reputation and that’s why I’m fucking fed up with it…. To say that I go out and look for people’s material is bullshit and fucked. And I’m tired of taking the rap for it…. I avoid anything to do with clubs. People keep saying, “Why don’t you do The Comedy Store?” I don’t want to go back and get that rap again from anybody…. I got tired of [other comics] giving me looks, like, what the fuck are you doing here?”

  * Just ask the music industry—the topic of this book’s Epilogue.

  * Then-president Teddy Roosevelt, famously obsessed with manliness, saw football as a game that instilled, he said in a 1907 speech, “the courage that dares as well as the courage that endures.” But TR didn’t hesitate to summon Yale coach and football pioneer Walter Camp to the White House in 1905 to discuss cleaning up the game—especially since TR’s son, TR Jr. was now a freshman on the Harvard squad.

  * It’s true that passing causes more turnovers (in the form of interceptions) than does running (in the form of fumbles). And yet the football statistic with the highest correlation to wins is the number of yards gained per passing attempt, which is a measure of the efficiency of a team’s passing offense. Even with the relatively higher rate of turnovers that a pass-based offense tends to create, a good passing game is still more important to winning than the run. And a team built to pass while keeping interceptions relatively low has, in general, the best chance of winning football games. See Advanced NFL Stats, “What Makes Teams Win?” www.advancednflstats.com/2007/07/what-makes-teams-win-part-1.html.