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Commentary: Smaller Space for Innovation Leads to More Infringement Suits
Sometimes it seems as if today's musicians spend as much time defending themselves against copyright infringement lawsuits as they do writing new music. Reading about the infringement suits against Ed Sheeran, Nicki Minaj, Pharrell Williams, Robin Thicke and a host of others, one might be tempted to think that contemporary pop artists are just uncreative copycats.
The real issue, however, is that pop musicians simply may be running out of creative space. And this problem is being exacerbated by the behaviors of what we might call the “legacy” interests — parties who own copyright interests in already-created songs but who won't be making any new music.
I have argued, with my colleagues Stefan Bechold and Christopher Sprigman, that any field of creative production has a certain “innovation space.” This space represents the world of possible solutions to a given creative problem. At the beginning of a field, whether sonata form or smartphone design, the innovation space is wide open. Anyone is free to do almost anything. Over time, however, portions of the innovation space get filled by intellectual property rights. The earliest creators fill up the innovation space with their copyrights and patents, limiting the options for newcomers. Newer creators are faced with a dilemma in which they must either find a portion of the innovation space that hasn't been claimed or pay a license fee to one of their predecessors.
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