Creativity Occurs in Spite of or Because of the Law?
Maya Angelou once said that “[y]ou can’t use up creativity. The more you use, the more you have.”1 Her statement reflects the romantic perception of creativity: a limitless medium that flows in a self-perpetuating cycle. In contrast, the law governing creative works takes a less rosy view of the same process.
Intellectual property law today is largely centered around the idea that creators require some form of incentive to create. Without such protections, widespread copying would cause creators to stop producing material and, in turn, deprive the public of such goods. In other words, creativity requires a quid pro quo. This notion has been articulated by the Supreme Court in the context of copyright and patent law.2
The contrast between statements by creators and legal decision makers underscores a pivotal point in IP law: to what extent does the law actually influence creativity? On one hand, there are indications that the motivation to create is in part intrinsic,3 fuelled by some imperceptible and personal desire. On the other hand, an external framework of legal rights provides a safe zone for artists to make a living off their creations.
The fundamental question at the heart of IP law becomes even more complex when one surveys what lies inside and outside of its legal boundaries. Music, books, sculptures, and paintings are typical subject matter protected by copyright law.4 Recipes, fashion designs,5 and typography are not protected.6 However, the presence or absence of legal protection has not decimated any particular industry, as each of the mentioned areas continue to produce works for private and public consumption. This outcome calls into question the driving force behind IP law; if individuals nevertheless create outside of a legal safe zone, then can it be said that IP rights really motivate the act of creation in the first place?
And if the law does not fully reflect its stated purpose, then what other impact does the law produce? Certainly, the law affects the way in which markets for resulting creations are regulated. For instance, piracy generates large losses of revenue in both the music7 and fashion industry.8 IP law provides a remedy for the former, but not the latter. This has enabled musicians to pursue music distributors like Spotify, while the legal copying of fashion designs has spawned a global counterfeiting market and fast fashion businesses devoted to knock-off creativity.
In this light, IP law may not affect the initial spark of creativity so much as the market for creative products. And if this is the case, then the balance of considerations underlying IP law might require a more holistic examination that makes room for the interests of creators and the reality that they endure.
Maria Popova, What is Creativity? Cultural Icons on What Ideation Is and How It Works, Brain Pickings (Sep. 6, 2013), https://www.brainpickings.org/2013/09/06/what-is-creativity/ [https://perma.cc/ZLQ6-S29K].↩
Mazer v. Stein, 347 U.S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’”).↩
See generally Jessica Silbey, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property (Stanford Univ. Press 2015).↩
17 U.S.C. § 102 (2017).↩
See generally Rachelle Bergstein, Are celebs knocking off real designers?, New York Post (Feb. 19, 2018), https://nypost.com/2018/02/19/are-celebs-knocking-off-real-designers/ [https://perma.cc/DV32-B9PS].↩
But see Kal Raustiala & Christopher Sprigman, The Knockoff Economy (Oxford Univ. Press 2012) (arguing that copying facilitated by lack of legal protection can be good for creativity).↩
Why Does the RIAA Hate Torrent Sites So Much?, Music Business Worldwide (Dec. 6, 2014), https://www.musicbusinessworldwide.com/why-does-the-riaa-hate-torrent-sites-so-much/ [https://perma.cc/2DZY-8M49] (the Institute for Policy Innovation estimates that “global music piracy causes $12.5 billion of economic losses every year.”).↩
Sarah Shannon, Fighting the $450 Billion Trade in Fake Fashion, Business of Fashion (Mar. 2, 2017), https://www.businessoffashion.com/articles/intelligence/fighting-the-450-billion-trade-in-fake-fashion [https://perma.cc/XQ8D-QVL7] (estimating that the European Union’s clothing, footwear and accessories industry loses approximately $27.7 billion in yearly revenue from counterfeit goods).↩