Our latest post at The Volokh Conspiracy is about the power of performance and brands to spark innovation. Here’s a taste:
“The power of brands is very apparent in any big drugstore. Walk into a CVS, and you can buy, for $20.99, 300 tablets of Advil brand ibuprofen. That is just under $0.70 per tablet. The CVS private label ibuprofen—which contains exactly the same dosage of the same medicine—costs $17.79 for 750 tablets, or about $0.24 per tablet. The Advil brand ibuprofen, in other words, is almost three times as expensive as the CVS ibuprofen, despite the fact that they are functionally indistinguishable.
As this shows, brands have a strong power over price. And as a result, they wield an unexpected ability to spur innovation. The story of ibuprofen can help explain this relationship. Ibuprofen was invented in the early 1960s by the UK firm Boots, which runs a large chain of drugstores. First patented in 1961, it was introduced in the United States as a prescription drug in 1974. In 1984, the FDA approved ibuprofen for over-the-counter (OTC) sale. That same year, Pfizer reached a license agreement with Boots and introduced OTC ibuprofen under the brand name “Advil.” Boots’s US patent expired in 1986, and soon after other brands of ibuprofen entered the market.
So in all, Pfizer’s Advil brand of ibuprofen had less than two years of market exclusivity in the United States. After those two years, many competitors jumped in. And yet today, almost 25 years after the expiration of the ibuprofen patent, Advil still owns 51% of the market. That’s more than twice the combined share of all generic ibuprofen products, despite the fact that Advil is functionally equivalent to its rivals and quite a bit more expensive.
Why are consumers willing to pay so much for certain brands? There is surprisingly little consensus among researchers about this. Part of the brand premium is surely based on perceived quality differences, and some studies suggest that beliefs about quality may account for perhaps 20% of the difference. But this rationale makes less sense in the case of a basic pain reliever like ibuprofen, where the FDA certifies that the generic drug is as safe and effective as the branded pill. The brand itself seems to have some effect on the willingness of consumers to pay more.
What’s the upshot? Brands can keep prices high and give firms large and resilient market shares. That brands can have such huge effects explains why companies spend so much money promoting them and designing nifty names and symbols. This much is well known. But the power of brands also has important implications for innovation. If an innovator can link her innovation to a successful brand, she can maintain pricing power even after her innovation is copied. This is the key takeaway of the ibuprofen story. The patent on Advil gave only two years of monopoly control. Yet decades later, Advil still dominates the market for ibuprofen. This suggests that whatever the period of exclusivity, if the brand is sufficiently well-established the innovator can continue to profit—substantially—even after the entry of copies, and even if the copies are quite literally identical products. The brand, in effect, can substitute for the protection against copies offered by patent or copyright.
This is a big topic, and exactly how brands do this is poorly understood. Which means we should try to understand it better. Brands serve as handy identifiers that help consumers more efficiently select the product they want when they’re out shopping. But brands also appear to have an important and unappreciated role in sparking innovation.”
Writing in The Daily Beast, influential journalist and economics blogger Megan McArdle picks up on a feature of The Knockoff Economy that we’re always happy to have someone notice — we are not IP abolitionists, and we think that IP law has an important role to play in encouraging creativity. And although we think that industries like food, fashion, and others that innovate without much reliance on IP have something to teach us about the future of traditionally IP-reliant industries like music and film, it’s important not to over-state the degree to which these very different sorts of industries are likely ever to run on the same logic.
Indeed, a central message of our book is that all creative industries are different. Some need IP more than others. Some don’t need it at all. Now, despite these obvious differences, the IP system tends to treat all creative industries alike. Copyright law, for example, imposes the same basic rules on hundred-million-dollar motion pictures and two-cent shampoo bottle labels. And patent law imposes the same rules on new drugs, which are often stupendously expensive to produce, that apply to Amazon’s patent on a “one-click” method of online ordering, which someone probably dreamed up and implemented in a few weeks and at very little cost. (Actually, that Amazon patent never should have been granted in the first place. “One-click” was obvious to anyone who thought about the issue at all, not least because the previous ordering method required two clicks.)
McArdle draws from our work something that we very much hope to get across — we should start thinking about ways to make IP law better at addressing the different characteristics of very different creative industries. Do fashion, food, football, and fonts need more IP? Not that we can see. Does the pharmaceutical industry need the high levels of IP protection it enjoys under current law? Well, considering how expensive it is to discover new drugs and get them through FDA-compliant clinical trials, the case for patent protection in pharma is much, much stronger. How else would pharma companies attract the kind of capital they need to get new drugs off the lab bench and into the FDA pipeline?
So fashion and food may be on one end of the spectrum (the low-IP end), and pharma on the other. And in the middle sit a variety of other, important creative industries. Let’s just consider one we tend to obsess about — music. For decades, music was a high-IP industry — that is, it relied on strong and enforceable copyright as the basis of its business model. Well, along came Napster in 1999, and we all know what happened next. The music industry’s copyright-centered business model went “poof”. And we doubt that there’s anything that the industry, or government, can do that will make copyright work again as the central piece of the music industry’s business model.
So it’s time to start thinking about what a less copyright-reliant music industry could look like. In some ways, that shift is already happening. The live concert, which is really selling an experience rather than a product, is much harder to copy than a CD or digital download. And so live music is re-emerging as a growth area. That’s just one of a host of changes that are, over time, likely to make the music industry less susceptible to copying. Time will tell, but we’re betting that in 20 years the music industry will look more like fashion than pharma. And it will be making a lot of great music — and some money as well.
Kal and I are guest-blogging at widely-read libertarian/conservative legal blog The Volokh Conspiracy. Yesterday in our first post we introduced some of the big themes of The Knockoff Economy, and briefly explained why the fashion industry remains so creative despite having its central product—clothing designs—freely copied by any firm that thinks it can turn it a profit by aping an original design.
In our second post, we present a brief excerpt from the chapter on food to give a flavor (so to speak) of the book. In this excerpt, we discuss the incredibly creative culinary scene that now exists, and how copyright applies (or doesn’t) to cuisine. And we talk a bit about the story of the molten chocolate cake (pictured above), which, you have to admit, looks damn good.
We have a new post up on the Freakonomics blog re: the birth of the “chicken offset”, which is a clever way to keep eating at Chick-fil-A while avoiding contributing to any harm to the cause of gay rights. What does this have to do with our ideas in The Knockoff Economy? Plenty, actually, because “chicken offsets” are an example of “tweaking”, which is a kind of creativity that fascinates us. “Tweaking” is taking ideas that came before and twisting them in new ways. And, as we describe, that is the brilliance of the chicken offset.
Last Friday a federal judge in Manhattan dismissed a trademark lawsuit, brought against New York’s famous 2nd Avenue Deli. The NY deli’s offense, said the Las Vegas-based restaurant the “Heart Attack Grill”, was its marketing of a giant, very unhealthy pile of processed meats jammed between two potato latkes and named “the Instant Heart Attack.”
The federal judge was unwilling to permit the Heart Attack Grill to have a monopoly on the term “Heart Attack” as applied to sandwiches. Consumers were unlikely to confuse the 2nd Avenue Deli’s sandwich, the judge said, with one served by a waitress in Las Vegas dressed as a sexy nurse (this is indeed the Heart Attack Grill’s business model).
Seems right. And now that the trademark suit has failed, perhaps NYC mayor Michael Bloomberg, fresh from ridding the city of the scourge of giant bottles of soda, should pay a visit to the 2nd Avenue Deli and persuade them to stop poisoning the tourists (I don’t think actual Manhattanites eat there . . .).
Bourbon? Or rum? We like ‘em both (neat). Even when they fight over trademarks . . .
Cocktail recipes are not covered by copyright, and so they are widely knocked-off. And yet, there’s a lot of innovation in cocktails. Which is great news for us, as we explain on the Freakonomics blog.
You can’t copyright food. And yet we have lots of innovation in cuisine. Kal and I explain why.