COPYRIGHT AND THE CREATIVE PROCESS.

• Author: Bartholomew, Mark

INTRODUCTION 358 I. CREATIVITY IN COPYRIGHT LAW 362 A. "Substantively Impotent" Test 364 B. Art and the Subjective 368 C. Creativity Without Context 373 D. Copyright Populism 376 II. CREATIVITY: A NEUROSCIENTIFIC VIEW 382 A. Measuring the Creative Process 383 B. Motivating Individuals 389 C. Specifying the Creative Domain 392 D. Expertise 395 III. How TO TAKE CREATIVITY SERIOUSLY 398 A. Should Everything Be Creative? 398 1. Production Problems 398 2. The Value of Validity 402 B. Doctrinal Fixes 406 1. Making Motivations Matter 406 2. Avoiding the Art/Science Double Standard 410 3. Embracing Expertise 412 CONCLUSION 415 INTRODUCTION

What is copyright for? In contrast to some other areas of the law, there is overwhelming agreement on this question. Copyright protection is meant to foster creative expression. (1) Hence the settled doctrine that a work must be "creative" to be eligible for copyright protection. (2)

The consensus that creativity is copyright's raison d'etre quickly disintegrates when the conversation turns to defining that concept. In 1991, the U.S. Supreme Court affirmed as a matter of constitutional law that copyrightable works must manifest some "creative spark," but it provided scant guidance on how to discern that ineffable glimmer, except to say that most works do possess it. (3) Lower courts have been unable or unwilling to fill in the details. Ignoring information that seems obviously germane to the creativity inquiry--authorial intent, the work's reception in the relevant artistic community, or the work's deviation from convention--courts effectively abandon the field altogether, crediting a defendant's actual or proposed reproduction of a work as a dispositive testament to its creativity. (4) Seeing the depths to which the creativity requirement has sunk, some call for abandoning it altogether. (5)

The main reason for the creativity criterion's impoverishment is a belief--indeed, a faith--in the almost magical quality of the creative process. So conceived, the creative process is wholly and necessarily subjective, impervious to description or measurement by objective criteria. A corollary position warns of aesthetic prejudice. Because there are no objective benchmarks available to keep them honest, judges and juries will lend an undesirable bias to any attempt to rigorously evaluate artistic creativity, unfairly favoring some kinds of artworks over others. As a result, creativity is mosdy presumed rather than proven in copyright cases.

Until recently, psychology offered little evidence to shake the legal view that the creative process is unknowable. For a long time, the discipline ignored creativity altogether. (6) When psychologists turned to the subject in the mid-twentieth century, their method was usually to interview select creative individuals, most of whom (quite understandably) possessed limited ability to articulate the origins, stimuli, and processes of their own artistic production. (7)

This state of affairs has changed thanks to the techniques and tools of neuroscience. The last decade witnessed an explosion of neuroscientific research on creativity. (8) Inquiries into the biology of creative thought, which now represent a large share of all psychological studies of creativity, (9) bring new insights into the creative process, insights that clash with the uninformed guesses of a century's worth of copyright jurisprudence. This Article examines these new findings and takes seriously their implications for copyright law. Surveying an exciting and productive decade of relevant neuroscientific research, it advocates replacing entrenched legal misunderstandings with sounder and subtler descriptions of the creative process.

What the research shows is that creative activity has certain hallmarks--and that these hallmarks are disregarded in contemporary copyright law. Neuroscience confirms that creative works are the product of a particular process that involves lengthy planning, deliberation, and focus. Yet copyright law blinds itself to information on the creative process, judging creativity by exclusive reference to the final product--the allegedly creative work itself--and repeatedly insisting that even accidental and unconscious conduct can be creative. All available psychological evidence finds that artistic innovation demands a working knowledge of a relevant domain's prior art, but courts avoid comparing an artistic domain's extant works to the work at issue. Even though the science reveals that experts recognize creative breakthroughs in the moment and agree in their assessments of a work's creativity, expert testimony is considered so idiosyncratic as to be unreliable and unwelcome in copyright creativity determinations.

By enhancing our understanding of the creative process, neuroscience can offer guideposts for redefining copyright's creativity standard. It cannot provide a complete blueprint. Creative thought is too complex a cognitive activity to be fully elucidated by today's technologies for recording changes in blood flow and measuring fluctuations of electrical activity in the brain. Time and its passage place another limit on neuroscience's present utility to the law of copyright and creativity. Neuroscientists study creative behaviors as they happen in laboratory settings, but copyright disputes often involve projects completed in the distant past. It is impossible to use neural imaging to see what occurred in an author's mind years before she seeks to vindicate her intellectual property rights in court. (10) But the point is not to use neuroscientific evidence to decide individual cases; the point is to improve the doctrine governing those cases.

Even if neuroscience cannot be used to decide individual cases, it does offer valuable insights for restructuring the creativity requirement. For all the agreement around copyright's intended service to creative production, solid evidence of copyright law's incentive effects is notoriously hard to come by. (11) Neuroscience offers lawmakers and legal theorists a promising alternative: redirect our attention to the mental processes that generate artistic output in the first place; then use our understanding of those processes to assess and revise the legal rules meant to foster creativity. This Article instantiates that alternative.

The Article begins by setting the current doctrinal scene. As Part I explains, creativity and independent creation are copyright law's two conditions for originality, described as the "sine qua non of copyright." (12) Yet, as interpreted by the courts, the creativity condition has become vanishingly small. This was not always the case. Not unlike the exacting creativity requirement currently applied in the related field of patent law, copyright's creativity requirement once had some real teeth. (13) It lost that bite through neither accident nor neglect, but through the force of three assumptions about the creative process grounded more in ideology than in fact. The first of these assumptions holds that authorial intent is irrelevant because creativity is both an inherently personal process, resistant to external appraisal, and a quality that can manifest without personal volition. According to the second assumption, artistry, unlike the inventive output regulated by patent law, does not rely on domain-specific expertise and, therefore, should not be compared against previous work in the same domain. Finally, the third assumption maintains that attempts to evaluate creativity can only enact the evaluator's personal taste, leading courts to reject expert evidence of an author's relationship to her particular artistic domain. The end result of these assumptions is a creativity filter that allows almost everything to pass through.

Part II shows how the major assumptions of copyright's creativity jurisprudence have been upended by the latest evidence on how the creative process actually works. Psychologists posit that creativity occurs in systems involving not only (1) the individual artist, but (2) the techniques and conventions of the relevant domain (e.g., hip-hop music or comic books), as well as (3) the reactions of that domain's gatekeepers and trusted authorities. Neuroscience has uncovered important dimensions of these three essential variables: individual, domain, and field. For the individual author, we know that intent is key. Rather than being irrelevant, motivation is highly correlated with creative success: to generate something creative, you need to want to generate something creative. With respect to domain, understanding what came before is critical because creativity depends on evaluating new concepts against a benchmark of existing standards. Lastly, as to field, experts offer more than their personal tastes; they can consistently detect and appreciate creative activity in a way that individuals with less experience in the relevant domain cannot.

Part III turns from the descriptive to the normative, detailing how the creativity requirement should be recalibrated in light of recent neuroscientific discoveries. A handful of legal scholars argue for the requirement's complete abolishment, but a meaningful creativity standard supplies critical benefits. It can help fulfill copyright's constitutional mission of furthering innovation in science and the arts as well as improve the structure and sequencing of judicial decision making in copyright adjudications. To realize these benefits, however, courts' application of the creativity requirement must change. Three doctrinal reforms--investigating artistic motivation, considering prior art, and receiving expert testimony as to a work's departures from what came before--are proposed.

I. CREATIVITY IN COPYRIGHT LAW

The creativity requirement represents a massive paradox at the heart of copyright law. On the one hand, statements as to the centrality of creativity to copyright protection are omnipresent. (14) According to the...