BJ Ard, Creativity Without IP? Vindication and Challenges in the Video Game Industry, 79 Wash. & Lee L. Rev. 1285 (2022).
Abstract
This Article intervenes in the longstanding debate over whether creative production is possible without exhaustive copyright protection. Intellectual property (IP) scholars have identified “negative spaces” like comedy and tattoo art where creativity thrives without IP, but critics dismiss these examples as niche. The video game industry allows for fresh headway. It is now the largest sector in entertainment—with revenues greater than Hollywood, streaming, and music combined—yet IP does not protect key game elements from duplication. Participants navigate this absence using non-IP strategies like those identified in negative-space industries: AAA developers invest in copy-resistant features while indie game developers rely on community norms. The answer to whether creative production is possible within IP’s negative space even in a capital-intensive industry is thus a decisive yes.
Studying this industry also compels us to go beyond surface-levelquestions of whether creative production is possible and to grapple with how the configuration of IP and non-IP protections shapes what is produced and how this configuration favors some creators over others. The industry likewise pushes us to recognize that the stability of these regimes is contingent on broader features of technology, the economy, and society at large. In fact, the industry has come full circle from a sector where copying plagued the industry, to one where it became a non-issue, to one where it has reemerged as a problem in mobile gaming.
The video game industry is also crucial for study because it embodies the state of creative production in the information age. Scholarship has long treated legacy industries like Hollywood and music as paradigmatic without attending to the complex realities of modern creative production and the importance of going beyond IP to understand how these industries work. It is time we moved past the conceptual divide between “full IP” and
negative spaces to interrogate the overlapping but partial legal
protections across both sides of the line.
