Elgar Law and Entrepreneurship series
Edited by Shubha Ghosh and Robin Paul Malloy
Chapter 3: Creativity and Craft
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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