Art, Music, & Mashups: A View from the Bench on Creativity and Copyright

Abstract

Creativity has captured human fascination for centuries. It has been said that “[t]here is little that shapes the human experience as profoundly and pervasively as creativity.” But what is creativity? Is it pure originality? Divine inspiration? Clever assimilation of existing ideas? Despite creativity’s central role in human progress, the term eludes finite definition.

To Plato, creative inspiration was divine. In contrast, Kant thought that creative geniuses were not divinely inspired but born with a particular quickness of mind that fostered brilliance and innovation. T.S. Eliot recognized the critical role of borrowing in creative work, quipping, “[i]mmature poets imitate; mature poets steal; bad poets deface what they take; and good poets make it into something better, or at least something different.”

In psychology, a leading theory of creativity requires inspiration from existing concepts. In his “associative theory” of creativity, Sarnoff Mednick posits that most of us have predictable, stereotypical associations with a given stimulus, while the creative among us are able to retrieve remote associations. For instance, although most associate “table” with “chair,” the creative might proffer “leg” or “food.” Defining creativity as a framework of novel associations between existing concepts, Mednick distinguishes originality from creativity, finding the former of little import.

However different theorists and disciplines might define creativity, its outcomes are varied, enduring, and ever evolving. Creativity has brought us everything from Rodin’s sculptures and Van Gogh’s paintings to Newton’s scientific discoveries, from musical scores and movies to computer code.

Where, then, does the law intersect with creativity? The United States Constitution directs Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Born from that critical clause is the American approach to copyright. Recognized by the U.S. Supreme Court as “the engine of free expression,” copyright law enriches “the general public through access to creative works.”

To illustrate how copyright law fulfills its aims through the lens of art, music, and “mashups,” I invite you to accompany me on a short tour of copyright law’s dance with creativity by offering select examples from federal appellate decisions and a view from the bench.