Creativity, improvisation, and risk: copyright and musical innovation.

• Author: Arewa, Olufunmilayo B.
• Position: Symposium: Creativity and the Law

The goals and beneficiaries of copyright frameworks have long been contested in varied contexts. Copyright is often treated 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 profit from their copyrighted works by exercising 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 extent to which copyright increases creativity. Further, conceptualizations of creativity within legal discussions remain vague. 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 a 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.

INTRODUCTION

Although copyright has expanded to artistic practices that necessarily involve more than the visual, a visual-textual bias in copyright has remained. The expansion of copyright to music underscores potential incompatibilities in applying visual copyright to an artistic practice, such as music, that is both oral and aural. In fact, music creation does not require writing, but may include oral and, at times, written traditions. Courts in music copyright cases give primacy to visual, written aspects of music and typically assume that oral musical expressions fall into the category of a performance, which is in turn assumed to derive from and be secondary to an underlying written musical composition. The visual bias in music copyright has become more problematic in the post-sound-recording era, when copyright increasingly protects things other than written musical expression. Further, the twentieth-century displacement in the popular music arena of European-based music by African-based music, which often embeds significant elements of oral music traditions, particularly challenges music copyright's visual assumptions.

1. COPYRIGHT, CREATIVITY, AND RISK

   1. The Goals of Copyright

      The Intellectual Property Clause of the U.S. Constitution provides that: "The Congress shall have Power ... 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." (1) The authority for copyright thus embeds two key concepts that have long been a focus of intellectual property scholarship: progress/innovation and the rights of authors. Authors' fights have been typically conceived of as a type of property right, (2) hence "intellectual property," but could, in reality, be structured in a number of different ways.

      From the perspective of artistic practice, the scope of effective control encompassed within ideas of authors' rights has always been highly mutable, particularly in the music arena. (3) Music compositional practices have varied both over time and among genres in ways that should be more explicitly recognized in copyright considerations of music. For example, early Renaissance music contained compositional and performance practices more akin to jazz, (4) while nineteenth-century music came to embody what became dominant copyright assumptions about the priority of written compositions and fidelity to written musical texts in performance. (5) Creation practices in the music arena reflect highly varied approaches to musical creation in which borrowing has been a norm in all genres and time periods. (6) Although creators of music may borrow for different reasons, (7) the pervasive nature of musical borrowing has significant implications for copyright treatment of musical creativity. (8)

      In addition to incorporating assumptions about the nature of artistic creativity, copyright frameworks also embed both explicit and implicit assumptions about the relationship between authors' ownership rights and innovation. A pervasive assumption exists, for example, that copyright gives incentives to innovate that result in greater production of artistic works. (9) Such greater production may be conceived of in both quantitative and qualitative terms. (10) In contrast to the patent arena, however, the impact of copyright frameworks on the production of works is not well understood, although recent scholarship has increasingly addressed questions relating to copyright and the production of works. (11) The impact of copyright on the production and consumption of works and creativity, more generally, is multifaceted. (12)

      Questions of quantity and quality are potentially complex and intertwined in varied copyright contexts. In addition to unanswered questions about the impact of copyright on the production of works, the extent to which copyright enhances artistic innovation and creativity remains under-explored. Further, how to appropriately determine what constitutes innovation remains uncertain in a broad range of artistic contexts. Creativity is one potential metric by which to measure artistic innovation. However, conceptions of creativity in the law remain nebulous and in many instances incompatible with actual creative practices in varied contexts. (13) What constitutes creativity may also be quite subjective and depend to a significant degree on the eye of the beholder. Certain types of creativity are, however, disfavored by legal frameworks, which incorporate ideas about creativity heavily influenced by autonomous romantic author conceptions that do not take sufficient account of the inherently collaborative nature of creation in a wide range of creative contexts. (14)

   2. Musical Copyright and Visual-Textual Bias

      Romantic author influenced conceptions of creativity in the music arena tend to lead to a focus on written aspects of musical expression. As a result of this focus on musical writings, copyright fails to include the full range of actual musical creativity. Copyright views of musical creativity contain a significant degree of visual-textual bias. (15) This visual-textual bias constrains copyright in important ways that prevent copyright frameworks from encompassing musical creativity in its fullest. Visual bias emerges from three primary factors: historical, linguistic/semiotic, and cognitive. (16) The historical factors that have shaped visual bias are, in part, a consequence of the technological realities of music preservation prior to the sound-recording era.

      Although not immediately commercialized for music, sound recording technology became available following Thomas Edison's 1877 development of tinfoil phonograph technology. (17) Prior to the development of sound reproduction technology, music was generally preserved tangibly in writing and intangibly in human memory. Copyright, which originally protected literary and other writings, was thus initially based on protection of written musical compositions, which include musical notes and, in some cases, lyrics. (18) Music is also a performance art, which has bearing on musical creativity, particularly once sound recording technologies permitted preservation of oral aspects of musical creativity evident in performance. Technological realities thus meant that musical copyright initially came to protect musical writings. (19) Actual musical creative practices, however, demonstrate the extent to which all music, including European classical music, contains both written and oral traditions. (20)

      How copyright came to protect music is an important factor in understanding persistent views of musical creativity. The early history of music copyright also reflects a trajectory in which initial concerns about unauthorized copying and distribution of completed works later came to shape conceptions on the creation side such that copying in creation became increasingly disfavored during the nineteenth century and subject to increasingly sacralized views of musical creativity. (21)

      The extension of copyright protection to music in eighteenth century Britain highlights continuing issues of concern in music copyright. The Statute of Anne, (22) an early copyright statute that specifically refers to books and writings, (23) was not at first thought to cover musical compositions. (24) Although the Statute of Anne did not initially protect musical compositions, (25) the unauthorized use of music was an issue of great concern to music publishers who traded accusations of piracy. (26) Composers struggled with publishers in the eighteenth century both to prevent unauthorized publication of their works and to increase the low economic returns offered to them by publishing houses. (27) These early struggles between composers and their publishers foreshadowed conflicts...