A BRIEF D EFINITION OF CREATIVITY
CREATIVITY AND CONSTRAINT IN COPYRIGHT THEORY
There has been a robust debate on patent commentary about the social value of encouraging efforts to develop alternatives to existing technology – “inventing outright,” in patent parlance. Author theory lacks a similarly developed discussion of the further benefits of circumventing protected works.
The Constraint Critique
SUPPLEMENTARY REPORT OF THE COPYRIGHT REGISTER TO THE GENERAL REVISION OF THE U.S. Print 1965) (noting that while a broad reproduction right might make a separate derivative work right redundant, omitting any specific mention of it would be likely to cause uncertainty and misunderstanding"). For a discussion of the rare cases in which the derivative work right can do what reproduction law cannot do, see Mark A.
Inventing Around and Creating Around
CONSTRAINT AS A SOURCE OF CREATIVITY
Pablo Picasso once stated that "forcing oneself to use limited means is the kind of restraint that frees invention. The more limitations one imposes, the more one frees oneself from the shackles that fetter the spirit.1 40. And the Philosopher Eric Hoffer noted that coercion begets novelty and concludes that “[a] society that grants unlimited freedom to the individual most often achieves a disturbing uniformity.
She has recently observed that constraints can actually promote creativity where the resources are sufficient to satisfy the constraint and the rules are both clear and challenging.148 External constraints and internal motivation need not be incompatible. 146 The basis for this thesis is professors Edward Deci and Richard Ryan's self-determination theory, which relates inner motivation to self-perceptions of freedom.
Creativity and the Path of Least R esistance ................................................................. 136o
- Creative Cognition in K nitw ear
- D esign Fixation
- Fieldw ork
- Sum m ary
- A M ODEL OF G ENERATIV E CONSTRAINT
But it is not an extremely effective path to originality, and where the problem solver transfers aspects of the example to a new context where they are unnecessary or detrimental to the solution, it is not an effective path to appropriateness either.164 In . Ward, Cognition and the Creation of Ideas, in OXFORD HANDBOOK OF THOUGHT AND REASONING 459 (Keith J. In the first study, Finke compared ratings of creativity under three different conditions: (i) the category was random, but the parts were chosen, (2) the category was chosen but the parts were random, and (3).
Professors Evangelia Chrysikou and Robert Weisberg hypothesize that the difference lies in the way the instructions are given. Rosso also discovered that social dynamics shape individuals' attitudes toward the role that constraint plays in the creative process. None of these studies are entirely concerned with re-limiting the copyright system.
The devil is in the details of figuring out where that sweet spot lies between o% and ioo%.
Source
Hays Code-era filmmakers and Victorian novelists innovated new ways of conveying meaning, not despite, but because of, imposed restrictions on content.26 1 James Joyce responded to censorship with the cryptic yet deeply influential prose of Finnegan's Wake up. VICTORIAN NOVELS, HAYS CODE FILMS AND THE BENEFITS OF CENSORSHIP 2 (2o13). 34;Rather than being destroyed by censorship, the novels written in nineteenth-century England and the films produced under the Production Code were stirred and stimulated by the forces meant to restrain them." ).TIMES (June 23, 2Q11), http://www .nytimes.coM2OIi/o6/24/opinion/global/24iht-june24-ihtmag-hua-28.html (providing a Chinese novelist's account of how evasion of state censorship "gave full rein" to the rhetorical functions of language, elevating both innuendo and metaphor, parody and hyperbole to a lofty level, conveying sarcasm and contempt through veiled gibes and sly indirection. Surely our language has never been so rich and vital as it is today.") ; Philippe D.
264 See Dotan Oliar & Christopher Sprigman, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 VA. At the very least, it is clear that many artists doubt that copyright has much to offer the creative process,268 suggesting that there is significant room for improvement.
Target
When participants tried to create a suitable chair, it was because the goal constraint (a chair) conflicted with an element constraint (the basic parts of the object available to them).275 When this goal constraint was extended to furniture in general , scattered conflicts. While processes can be patented, they cannot be copyrighted.278 Copyright law scrutinizes what subsequent creators create rather than how they do it. However, due to the product/process feedback loop, copyright law can still place significant limitations on the process.
A maximalist copyright law that renounces fair use defenses, the doctrine of sctnes dfaire,27 9 and other safeguards for borrowing and citation would cast a long shadow not only over what society creates, but also over how society creates . Even a minimalist copyright law governing only verbatim reproduction would still limit proceedings at the fringes.
Scope
Certainly, as I acknowledged in the previous section, some processes are inevitably intertwined with the fruit they bear. The answer should color what kinds of adaptations the fair use doctrine should allow. Until then, at least, it is clear that embracing coercion as a source of generativity is fully consistent with the basic architecture of fair use, along with the idea/expression dichotomy and a spacious public domain.
I am not aware of any empirical work that assesses the significance of clarity in the relationship between constraint and creativity. Although Bridgeport's holding addressed only substantial similarity, this language influenced the perception of fair use.
Tim ing
In short, the underappreciated benefit of creating around places a theoretical premium on predictability, something that copyright law has historically struggled to provide. Individuals in many creative communities are not particularly aware of copyright law in the midst of the creative process. Greater clarity on the ground, and not just in the courts, would go a long way toward shifting the timing of restrictions earlier in the creative process.
Severity
Individuals may view the limits of the constraint's margins as too dangerous, especially where those margins are not perfectly defined.3 24 More speculatively, high penalties may also harm engagement. As sanctions increase and the restriction is seen as less fair, individuals may stop viewing creation as an intrinsically motivating act.325 Rather than exploiting the restriction for creativity, they would simply avoid the domain altogether. Others with a higher risk tolerance may reject the restriction altogether.326 Thus, even if one thinks that creating around is in principle socially valuable, high sanctions carry a significant danger of over-deterrence.
Formally, the Copyright Act allows steep statutory damages awards, up to $150,000 per work infringed.327 Even for those with meritorious defenses, litigation costs alone are likely to be prohibitive.328 On the other hand, many copyright owners tolerate infringing downstream reuse,329 and, perhaps partly as a result, many downstream creators do not pay much attention to those limitations during the creative process.330 Those most inclined to play with copyrighted expression often have little interest in learning, let alone meet, which copyright claims. Without both, creation may be limited to the universe of creators who are both copyright-aware and risk-seeking.
Polarity
GENERATIVE INFRINGEM ENT D OCTRINES
First, it would limit adaptations of protected expression - what we call a derivative work right. Second, it would create room for products with high variability – what we call fair use. And third, since differentiation from the creator's subjective set of precedents drives creativity, it would limit copying, but not random overlaps with works the creator has never encountered - what we call the defense of independent creation.
It would be transparent, easily evaluated at the point of creation, and respected by the creative communities it manages. My aim is not to offer a unified theory of how to construct a copyright law that leaves the world's best; this would require balancing the gain of creativity with the concern for self-expression and the loss of dead weight, which this article has bracketed.3 44 My aim is more to examine what kinds of creativity might be added to the scale.
Constraints that H elp
I am certainly saying nothing new in recognizing that fair use has a crucial role to play in limiting the scope of restrictions.3 6 1 After all, the Supreme Court has called it "the guarantee of a breathing space within the framework of copyright". .''362 However, it is rarely recognized that fair use itself limits creators - in the best possible way. By offering a limited range of unlicensed copying that can be done, fair use serves as a mandatory constraint on downstream creators just as the hypothetical copyright block would, but with a crucial difference: fair use's emphasis on transformativeness for adaptive use is a constraint with high variability for how individuals may copy from the past.
With its selective exclusivity, the fair use doctrine gives rise to its own underappreciated form of creation. The possibility of unfair use, the negative space of fair use, discourages the potential mentality of entitlement regarding the use of cultural goods.
Constraints that H urt
As the effect of constraint moves earlier in the creative process, individuals become better equipped to create around it.3s5 They gain both the freedom that fair use affords and the serenity of unanticipated cultural encounters that navigating unfair use generates. 384 Preliminary results from a 2014 national survey of documentary filmmakers, for example, show that in the vast majority of cases, insurers and broadcasters are content to rely on fair use as long as “they had a letter from a lawyer certifying that the use was fair." CTR. Rothman, Best Intentions: Reconsidering Statements of Best Practices in the Context of Fair Use and Copyright Law, 57 J.
A similar lightning rod is the Copyright Act's statutory damages provision, which allows awards of up to $15o,000 per work allegedly infringed, even in the absence of actual damages.394 These penalties are unlikely to be imposed for infringement that results from downstream adaptation. 3 9 5 Nevertheless, the ghost threatens to become an occasional exception. Creativity scientists have found that intrinsic motivation remains high, even in the face of extrinsic motivators, when individuals are explicitly told about the potential negative effects of extrinsic motivation and the importance of staying engaged in the task.398 Society will. get more creativity out of the copyright system when not only copyright science, but also the public copyright discourse in general, comes to recognize the value of creating it.
