Cultural Spillovers: Copyright, Conceptions of Authors, and Commercial Practices

• DOI: http://doi.org/10.1111/lasr.12308
• Date: 01 March 2018
• Published date: 01 March 2018

Cultural Spillovers: Copyright, Conceptions of

Authors, and Commercial Practices

Heather A. Haveman Daniel N. Kluttz

Economists, sociologists, and legal scholars agree that intellectual-property

law is fundamental to markets because legal control over copying motivates

creative production. But in many markets, such as fashion and databases,

there is little or no intellectual-property protection, yet producers still create

innovative products and earn profits. Research on such “negative spaces” in

intellectual-property law reveals that social norms can constrain copying and

support creative production. This insight guided our analysis of markets for

American literature before the Civil War, in both magazines (a negative space,

where intellectual-property law did not apply) and books (a positive space,

where intellectual-property law did apply). We observed similar understand-

ings of authors and similar commercial practices in both spaces because many

authors published the same work in both spaces. Based on these observations,

we propose that cultural elements that develop in positive spaces may spill

over to related negative spaces, inducing changes in buyers’ and sellers’

behavior in negative spaces. Our historical approach also revealed nuances—

shades of gray—beyond the sharp distinction typically drawn between nega-

tive and positive spaces. In the 1850s, a few large-circulation magazine pub-

lishers began to claim copyright, but many still allowed reprinting and none

litigated to protect copyright.

Economists, sociologists, and legal theorists adopt disparate

assumptions and make different predictions about what sustains

markets, but they all agree that property-rights law is essential

(e.g., Campbell and Lindberg 1990; North 1990; Polanyi 1944;

Posner 2010). Property-rights law determines the technical limita-

tions on markets by defining rules governing ownership and

This research was funded by grants from the NSF (SES-0727502 and SES-0096016),

the Ewing Marion Kauffman Foundation, and Berkeley’s Institute for Research on Labor

and Employment. For helpful comments, we thank the editors, four anonymous reviewers,

William Gallagher, Simon Stern, and seminar participants at Berkeley’s Center for the

Study of Law and Society and Center for Culture, Organizations, and Politics.

Please direct all correspondence to Heather A. Haveman, Department of Sociology and

Haas School of Business, 410 Barrows Hall, University of California, Berkeley, CA 94720-

1980; e-mail: haveman@berkeley.edu.

This article was published online on 29 November 2017. An error was subsequently identi-

fied. This notice is included in the online and print versions to indicate that both have

been corrected on 14 December 2017.

Law & Society Review, Volume 52, Number 1 (2018)

V

C2017 Law and Society Association. All rights reserved.

7

control over production, products, and modes of exchange. Such

legal-technical effects determine what can be sold, who can sell

and buy, who can profit from selling, and under what circum-

stances products can be sold. Legal scholars and sociologists also

argue that property-rights law creates cultural constraints on

markets: cognitive schemas about buyers’ and sellers’ roles, their

relative power, and the nature of their exchanges (e.g., Edelman,

Uggen, and Erlanger 1999; Fligstein 2001; Gordon 1984). Thus,

property-rights law determines both what is feasible (technical

constraints) and what is acceptable (cultural constraints). In par-

ticular, intellectual-property law gives producers control over the

copying of their innovations; such control, in turn, spurs the cre-

ative production necessary for markets to thrive.

In addition to culture deriving from law, legal scholars and

sociologists recognize that cultural factors, such as norms and value

systems, can substitute for formal law. For example, people often

eschew formal law and rely instead on informal mechanisms such

as customs, norms, and standard practices to guide contract rene-

gotiations (Macauley 1963), resolve property disputes (Ellickson

1991), and safeguard workers’ rights (Edelman, Uggen, and

Erlanger 1999). Similarly, legal scholarship examining “negative

spaces” in intellectual-property law

1

—such as markets for fashion,

recipes, and open-source software, all of which thrive in the

absence of intellectual-property protection—has shown that social

norms can stand in place of formal law (e.g., Raustiala and Sprig-

man 2006; Buccafusco 2007; Sprigman and Raustiala 2012). In the

absence of intellectual-property protection, producers can copy

each other’s products without legal repercussions. Yet social norms

often constrain copying and foster creativity (e.g., Buccafusco

2007; Fauchart and von Hippel 2008).

In this article, we apply negative-spaces theory to analyze

markets for literature in America from the mid-eighteenth cen-

tury, when copyright law and markets for literature were not well

developed, to the mid-nineteenth century, when copyright was

well understood and markets for literature were thriving. During

this period, copyright law applied to part of the market for litera-

ture in books: the book industry was a positive space for domestic

work but a negative space for foreign work, since American law

protected domestic books but excluded foreign books from pro-

tection. And although magazines were important forums for liter-

ary expression (e.g., Gardner 2012; Okker 2003), the magazine

1

In art, the term “negative space” denotes the area around an image; in law, it

denotes an area of activity outside the area where formal law applies.

8Copyright, Conceptions of Authors, and Commercial Practices

industry was a negative space because copyright law did not

cover magazines (Homestead 2005; McGill 2003; McGill in Gross

and Kelley 2010; Slauter 2015). We show that for domestic litera-

ture, books and magazines shared cultural conceptions about

authors and intellectual-property rights, and they came to share

commercial practices. Demonstrating such cultural spillovers

extends negative-spaces theory in new directions.

We build on sociological and sociolegal theories holding that

law shapes cultural conceptions of market participants (here,

authors as producers of literature) and market products (here, lit-

erature), which in turn shape how law is used (e.g., Edelman,

Uggen, and Erlanger 1999; Fligstein 2001; Macaulay 1963). This

work suggests that cultural conceptions of producers and products,

which co-evolve with the law inside positive spaces (where the law

applies), can spill over to related negative spaces (where the law

does not apply) and therefore shape practices in both positive and

negative spaces. Cultural spillovers may occur when positive and

negative spaces are connected through producers present in both

spaces or products exchanged in both spaces.

Our historical analysis reveals nuances beyond the sharp dis-

tinction typically drawn between negative and positive spaces.

Specifically, magazines became an ambiguous space in the 1850s,

as a few publishers of mass-circulation magazines began to claim

copyright protection. But magazines did not become a purely

positive space because magazines were not clearly covered by

copyright law and because norms allowing reprinting, even for

magazines claiming copyright protection, persisted and no

would-be copyright-holders litigated to enforce copyright. This

suggests that negative-spaces theory can be improved by being

more historically sensitive: (1) spaces can be neither white (clearly

positive) nor black (clearly negative), but rather different shades

of gray (ambiguous), and (2) the degree of spaces’ shading can

change over time in response to economic and cultural shifts.

Negative Spaces in Intellectual Property Law

Property-rights law is essential to markets (Campbell and

Lindberg 1990; North and Thomas 1973; Polanyi 1944; Posner

2010). It makes possible market-supporting tools, such as con-

tracts, mediation, and lawsuits. Yet recent research argues that

markets can flourish when intellectual-property rights protection

is lacking (e.g., Buccafusco 2007; Raustiala and Sprigman 2006;

Sprigman and Raustiala 2012). This work focuses on so-called

negative spaces, markets in which novel products are not pro-

tected by intellectual-property law:

Haveman & Kluttz 9