Creativity, Law and Entrepreneurship

Creativity, Law and Entrepreneurship

Elgar Law and Entrepreneurship series

Edited by Shubha Ghosh and Robin Paul Malloy

Creativity, Law and Entrepreneurship explores the idea of creativity, its relationship to entrepreneurship, and the law’s role in inhibiting and promoting it. The inquiry into law and creativity reduces to an inquiry about what people do, what activities and actions they engage in. What unites law and creativity, work and play, is their shared origins in human activity, however motivated, to whatever purpose directed. In this work contributors from the US and Europe explore the ways in which law incentivizes particular types of activity as they develop themes related to emergent theories of entrepreneurship (public, private, and social); lawyering and the creative process; creativity in a business and social context; and creativity and the construction of legal rights.

Chapter 3: Creativity and Craft

Michael J. Madison

Subjects: business and management, entrepreneurship, economics and finance, law and economics, law - academic, intellectual property law, law and economics


Michael J. Madison INTRODUCTION Consider objects, which I call things. It is widely acknowledged that things can be creative; they are made by creators. If that is true, then why can’t things be copyrighted?1 That puzzle and its implications are the subjects of this chapter. The Supreme Court has confirmed that copyright law is designed to encourage the production and distribution of ‘creative’ works of authorship, or ‘creativity,’ to use a common shorthand.2 I take that premise as given. It is well known, nonetheless, that not all creativity is equally encouraged by copyright, even in light of what has become known as the law’s ‘aesthetic nondiscrimination principle’.3 Creativity that neither differs in a minimally creative way from its source nor originates with the work’s author cannot be protected by copyright.4 ‘Facts’ are arguably created by human agency yet cannot be protected by copyright.5 ‘Ideas’ that are wholly the product of creative human imagination cannot be the subject of copyright, though under some circumstances ideas may be patented; copyright protects original ‘expression’.6 Only creativity that is ‘fixed in a tangible medium of expression’ can be the subject matter of copyright.7 ‘Unfixed’ creativity, such as the improvisations of a jazz performance, lies beyond the scope of statutory copyright and, since statutory copyright preempts equivalent state law,8 may disappear from legal protection altogether. Copyright courts tell us that the law does not discriminate among creators and creativity. Yet all available evidence tells us that it does.9 On the standard account...

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