Creativity and the Law
November 19, 2010
8:15 a.m. – 5:15 p.m.
Biolchini Hall, Room 1310

• Rebecca Tushnet (Georgetown)
• Michael Madison (University of Pittsburgh)
• Funmi Arewa (Northwestern)
• Roberta Rosenthal Kwall (DePaul)
• Gregory Mandel (Temple)
• Jessica Silbey (Suffolk)
• David Galenson (University of Chicago, Dept. Econ)
• Mario Biagioli (Harvard, History of Science)
• Sean Seymore (Vanderbilt)
• Jeanne Fromer (Fordham)
• Abraham Drassinower (University of Toronto)
• Keith Sawyer (Washington University Department of Education)

Schedule:

Thursday, November 18, 2010

7:30 PM Dinner – The Mark, 1234 Eddy Street Commons, South Bend IN, (574) 204-2767

Friday, November 19, 2010

8:15 – 8:45 a.m. – Continental Breakfast – Outside Room #1310 – Biolchini Hall

8:45 – 9:00 a.m. – Introductions

9:00 – 11:00 a.m. – First Panel

• Christopher Buccafusco – Moderator
• Gregory N. Mandel: To Promote the Creative Process: Intellectual Property Law & the Psychology of Creativity
• Sean Seymore: Atypical Inventions
• Keith Sawyer: The Western Cultural Model of Creativity: Its Influence on Intellectual Property Law
• Jessica Payne: Sleep on It!

11:00 -11:15 a.m. – Break

11:15-12:45 – Second Panel

• Rebecca Tushnet: Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children
• Olufunmilayo Arewa: Creativity, Improvisation, and Risk: Copyright and Musical Innovation
• Michael Madison: Commons and Curation
• TBA – Moderator

12:45 – 1:45 p.m. – Lunch – Eck Hall of Law – Faculty Meeting Room – 2nd Fl. #2130

2:00-3:30 p.m. – Third Panel

• David Galenson: Market Structure and Innovation: The Case of Modern Art
• Jessica Silbey: Inspired Beginnings & “Work Makes Work”: Two Stages in the Creative Process of Artists & Innovators
• Roberta Rosenthal Kwall: Creativity and Cultural Influence in Early Jewish Law
• Dan Kelly – Moderator

3:30 – 3:45 p.m. – Break

3:45 – 5:15 p.m. – Fourth Panel

• Jeanne Fromer: The Role of Creativity in Trademark Law
• Mario Biagioli: Originating Creativity: The Peculiar History of “Personal Expression”
• Abraham Drassinower: Incentives, Rights and the Public Domain in Copyright Law
• Joseph Bauer – Moderator

6:30 PM Cocktail Reception and Dinner – Trio’s Jazz Club & Restaurant, 129 N. Michigan St., South Bend IN, (574) 288-8746

Abstracts:

Rebecca Tushnet
Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children

Reproduction means two things: in copyright, we generally use the term to mean duplication. But sexual reproduction is not duplication; it is the creation of something new from something old. My piece will explore the complicated relationship between duplication and transformative reproduction, arguing that human creativity, like human reproduction, always makes new out of old in ways that copyright law has not fully recognized. The most frightening of our modern creations—the Frankenstein’s monsters that seem most appropriative and uncanny in light of old copyright doctrine—are good indicators of what our next generation of creativity with look like.

Gregory N. Mandel
To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity

Though a primary goal of intellectual property law is to promote creativity in technology and the arts, intellectual property doctrine pays remarkably little attention to psychology research on how to advance creativity. Psychology studies on motivation, collaboration, and divergent versus convergent cognitive thought processes provide significant insight into the creative process and indicate that certain intellectual property law hinders the very creativity the law is designed to inspire. These insights intersect at an issue vital to the forefront of creative achievement: promoting large-scale collaborative creativity. Large-scale collaborative projects have become critical in many areas of innovation due to the need for multidisciplinary expertise and substantial resources to push the envelope of human knowledge. From partnerships across private, government, and university research sectors to open and collaborative peer production, large-scale collaboration is revolutionizing fields as diverse as software, film, music, and biotechnology. The psychology of creativity provides valuable lessons on how to advance these efforts.

Jessica Silbey
“Inspired Beginnings and ‘Work Makes Work’: Two Stages in the Creative Process of Artists and Innovators”

This paper is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists and engineers about how and why they create and innovate. It also collects stories from employers, business partners, managers and lawyers about their role in facilitating the process of creating and innovating. The aim of the book is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to unpack the incentives and motives behind creative and innovative activity and to discern how intellectual property intervenes in the careers of the artists and scientists. This paper is an overview of the first two chapters of the book. The first is entitled “Inspired Beginnings” and explains how people describe the emarkation on a life’s work in art and science mostly as a function of intrinsic or serendipitous forces. The second chapter is entitled “The Work of Craft: Work Makes Work” and explores the varied ways the interviewees describe their daily work, and how despite the variations, for most sitting in a defined space (lab, studio, study) and focusing on the details of a project makes them happiest. This second chapter also discusses how work is described in terms of natural metaphors (e.g, harvesting or fishing) and the possible ramifications for this rhetoric for intellectual property law and policy.

Jeanne Fromer
Title: The Role of Creativity in Trademark Law

Abstract: This Article explores the role of creativity in trademark law. Unlike its intellectual property cousins of patent and copyright law, trademark law is not structured to reward creators for producing protectable subject matter. That is unsurprising because trademark theory and law is significantly different than patent and copyright law. Nonetheless, there are critical ways in which trademark law seeks to encourage creative activity, even without directly rewarding marks’ creators. Moreover, trademarks encourage creativity in important ways in contemporary society. I conclude with a normative sketch of whether and how much emphasis in trademark law on creativity is desirable.

Sean B. Seymore
Atypical Inventions

Patent law has been one of the most dynamic areas of the law for the past century. Given that inventions are technical creations, patent law cannot remain static but must evolve to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved; leading to a growing disconnect between the patent system and certain technical communities. Particularly vulnerable to the ill effects of this disconnect are “atypical” inventions, which are those in which either: (1) a technical aspect of the invention or the inventive process does not conform to an established legal standard in patent law; or (2) the technical underpinnings of the invention depart from well-established scientific paradigms. An example of the former is an invention which occurs by accident; an example of the latter is an invention which seems incredible in light of contemporary knowledge in the relevant field. Since these inventions often spark a paradigm shift in scientific and technological understanding, they have a high likelihood of stimulating significant creative activity and ultimately promoting the patent system’s overarching goal to promote scientific and technological progress. Thus, this Article argues that the patent system should evolve to better accommodate these inventions.

Roberta Rosenthal Kwall
Creativity and Cultural Influence in Early Jewish Law

Human creativity thus lies at the heart of Judaism, both from a theological and a legal standpoint. Therefore, there is much scholars who are interested in the creative process from a secular standpoint can learn from the Jewish tradition. On the secular side, legal scholars currently are turning their attention to analyzing law within cultural terms because political “culture” struggles are being waged increasingly on legal turf. This pairing of law and culture requires clear articulations of what culture means and what the relationship between law and culture should look like. This approach enables us to transcend the standard inquiries of what the law is, and what we want it to be, by asking instead what the law makes us. Among those scholars who invoke cultural analysis, there is a general sense that law and culture should not be viewed as two distinct entities but rather as embodiments of one another. When law is seen as culture and culture as law, it becomes logical to discuss how to interpret law in cultural terms.

Jewish religious law, known as halakhah, has been influenced by cultural developments both within the Jewish community and outside of it. Cultural analysis reminds us that cultures are not hermetically sealed but continuously interact with the world around them. This reality is especially true with respect to Jewish law given that the history of the Jewish people is such that they have been living in foreign cultures in the Diaspora for thousands of years. This Article illustrates how these cultures, generally and particularly with respect to Hellenism, have exerted an enormous influence on the development and application of Jewish law in its formative period. It adopts a cultural analysis perspective, thus positing that Jewish culture and Jewish law are inextricably intertwined. Further, it argues that from an early stage in the development of Jewish law, its inherent creativity derives from its confrontation with outside cultural influences.

Part I of this Article examines the analytical relationship between law and cultural analysis, and establishes the important symbiotic relationship between law and culture. Part II initially explores the fundamental tenets of the Jewish legal system in the law’s formative years. It then investigates the influence of the surrounding cultures, particularly the Hellenistic influence, on the development of early Jewish law. Throughout this Part, the Article develops the argument that the need for adaptation to the surrounding environment insured the inherent creativity of the law’s development and application. Part III contrasts the situation involving American Jewry in the twenty-first century with earlier times. It posits that the familiar and successful pattern of acculturation that historically insured a creative Jewish legal system is no longer viable in the sociological milieu in which most American Jews live.

David Galenson
Market Structure and Innovation: The Case of Modern Art

From the Renaissance through the mid-19th century, nearly all artists faced markets for their work that were dominated by powerful institutions or individuals. The rise of a competitive market for advanced art in the late 19th century freed artists from the constraint of having to satisfy patrons. This gave artists an unprecedented freedom to innovate, and a succession of young conceptual artists responded not only by creating radical new forms of art, but also by engaging in novel forms of behavior. A change in market structure, from monopsony to competition, thus explains why the art of the past century has been completely different from that of all earlier times.

Olufunmilayo B. Arewa
Creativity, Improvisation, and Risk: Copyright and Musical Innovation

The goals and beneficiaries of copyright frameworks have long been contested in varied contexts. Copyright is often characterized as a policy tool that gives creators incentives to create new works. Incentive theories of copyright often emphasize appropriability, which enables copyright owners to ensure that they receive a profit from their copyrighted works through their exercise of control over uses of and access to such works. Although copyright clearly imposes costs in the form of restrictions on access to copyright protected works and inefficiencies in the form of deadweight loss, the benefits of copyright are thought by many to outweigh the costs. Copyright discussions may at least implicitly assume that copyright frameworks and the control rights that accompany such frameworks increase creativity. However, little is actually known about the actual extent to which copyright increases creativity. Further, conceptualizations of creativity within legal discussions remain vague. Copyright gives copyright owners a type of property right in works that they control. As a result of a property rights focus, copyright discussions often pay significant attention to the risks to ownership for copyright owners posed by potential users and uses of copyright protected works. However, a focus on risks to ownership may obscure the presence of other types of risk in copyright contexts. Copyright control mechanisms may also pose significant risks to creativity and innovation because they may not sufficiently acknowledge the importance of uses of existing works as an important creative force. Musical innovation, for example, has come in many instances from creators taking creative risks through uses of existing materials in ways that do not fit well within dominant copyright assumptions about creativity. Creators operating within such creative paradigms may expose themselves to greater legal risks as a result of their uses of copyright protected material. Copyright discourse would benefit from greater attention to potential dangers that copyright frameworks might pose for creativity and innovation. Further, greater consideration should be given to the extent to which risks taken by creators in the creative process, evident in practices such as improvisation, may foster creativity. Evidence from at least some types of creative movements in the musical arena suggests that copyright would benefit from seeking to encourage creators to take creative risks while at the same time minimizing legal risks that might come with risky creative choices.

Michael J. Madison
Commons and Curation

This paper addresses conservation, preservation, and stewardship in the cultural environment, and institutions for doing those things. Along the way, it takes up distinctions among objects, works of authorship, and legal rights accompanying both, and among creations built to last (sometimes called “sustained” works), built for speed (including “ephemeral” works), and barely built at all (works closely tied to the authorial “self”).

Mario Biagioli
Originating Creativity: The “Personal Expression” Between Flowers and Flashes

By equating the environment to the public domain, and then analogizing the effects of its excessive enclosure through intellectual property to those of ecological disaster, cultural environmentalists like James Boyle and David Lange have accustomed us to conceptual linkages between IP and images of nature like prairies, rivers, parks, etc. In this paper I trace a different but related relationship between images of nature and intangible property: one that ties creativity and the emergence of copyright’s “personal expression” to organic processes of growth connected to the land. The same English and German 18th-century sources that have been seen as the birthplace of the notion of the “romantic genius” and the idea/expression dichotomy (like Young’s Conjectures on Original Composition and Fichte’s Proof of the Illegality of Reprinting) also discuss original works as flowers and plants and, sometime, faces. What can we learn from these opposite and yet coexisting analogies between a creative work as both the product of the flash of genius and as a plant? What is about creativity that allows it to be tied to processes that are both nearly instantaneous and boringly slow, and to images of the human mind as both brilliant and vegetable?

Abraham Drassinower
Incentives, Rights and the Public Domain in Copyright Law

Copyright subject matter and copyright scope have undergone significant expansion since the enactment of the Statute of Anne in 18th century England. Many protest against this expansion on the grounds that it is contrary to the very purpose of copyright law as an instrument intended to incentivize creativity. This paper develops the proposition that the instrumentalist account of copyright law is inherently complicit in the very expansion of copyright law that – at least in some of its formulations – it seeks to criticize. The paper concludes by sketching largely unexplored affinities between a non-instrumentalist (i.e. rights-based) account of copyright law and the affirmation of a vigorous public domain.

R. Keith Sawyer
The Western Cultural Model of Creativity: Its Influence on Intellectual Property Law

I begin by identifying and describing the Western cultural model of creativity, a set of approximately ten implicit assumptions and beliefs about creativity that members of Western and European cultures often hold. I describe each of these ten beliefs, and show that much of our current intellectual property regime is grounded in these ten beliefs.

Second, I turn to scientific research on creativity, conducted primarily by psychologists, but also by historians and sociologists. This research reveals that many of the ten beliefs are false, or at least strongly misleading. In each case, I draw on the research to propose an alternative view of creativity. In many cases, the scientifically grounded view of creativity is diametrically opposed to the Western cultural model.

Third, I discuss specific implications for IP law, in the context of the research challenging the ten beliefs of the Western cultural model. I identify specific elements of the current IP regime that are most closely tied to the Western cultural model, particularly those beliefs that are largely mythical. I discuss the implications and possible alternative IP regimes that would more closely align with the true nature of creativity and innovation. I argue that these alternatives would better foster individual and societal creativity and innovation.