The random muse: authorship and indeterminacy.

• Author: Durham, Alan L.
• Position: Copyright law

INTRODUCTION I. "AUTHORSHIP" AND "ORIGINALITY" A. Works of Genius B. A Spark of Creativity C. A Clap of Thunder D. Random Numbers II. INDETERMINACY AND THE ARTS III. AUTHORSHIP AND PROPERTY RIGHTS A. The Natural Rights of Authors and the Social Benefits of Authorship B. Romantic and Un-Romantic Authorship C. The Role of "Originality" 1. Diversity of Expression 2. Identification 3. Natural Rights 4. Defining the Commons IV. SEEKING AUTHORSHIP IN INDETERMINATE WORKS A. Hypotheticals 1. Artist A 2. Artist B 3. Artist C 4. Artist D B. The Random Muse C. Suggestions D. Caveats 1. Systems 2. Competing Claims 3. Other Issues CONCLUSION INTRODUCTION

One of the more elusive concepts in copyright law is that of "authorship." Authorship refers to the production of "original" works, meaning works which the author has newly created, as opposed to copied from other sources, and which possess at least some minimal degree of creativity. (1) Copyright protects "original works of authorship" (2) and extends only to what is original in such works. (3) Fixing the boundary between private property and the public domain, (4) the authorship/originality requirement has been described by the Supreme Court as "the very `premise of copyright law'" (5)--the "touchstone," (6) "bedrock principle," (7) and "sine qua non" of copyright. (8)

Metaphors like "bedrock" suggest a concept of authorship that is immutable, sharply defined, and reassuringly solid. Authorship, however, is so olden characterized by what it is not that it is sometimes difficult to say, positively, what authorship is. Consider a scholar who prepares a new English-language translation of the Iliad, with notes and an introduction based on the scholar's historical research. The scholar can claim no right to the original work, or to any aspect of the translation that accuracy compels. (9) Nor can the scholar prevent others from reciting the facts revealed by his research. The facts may be original in the sense of having appeared nowhere else, but they were not created by the scholar; they were discovered by him or, in a sense, "copied from the world." (10) Even choices reflecting matters of taste (e.g., this poetic turn of phrase instead of that pedestrian one) are influenced, if not determined, by a variety of external factors: the books the scholar has read, the lectures he has attended, perhaps even the genes he has inherited. Examined too closely, the process of authorship can seem less a conscious and creative act than a mechanical confluence of forces. It can be difficult to locate the "maker" (11) who wills into existence that which is personal and new. (12)

On the other hand, the complexity of the Iliad and the richness of the English language mean that countless translations could be written. The facts revealed by the scholar's research could be expressed in a variety of ways. While the variations that mark the scholar's work may be determined by his chromosomes or his experience, his nature or nurture, they are still his variations. Like most copyrightable works, whether they are artistic creations, literary works, musical compositions, or some other form of expression, the scholar's translation of the Iliad bears characteristic attributes of authorship: the work is unique; (13) it owes its existence to the scholar; it is the product of the scholar's intellectual labor; its form reflects the author's intentions and conveys his message; and it reflects the scholar's individuality--his personality, his experiences, his "self."

Yet consider the following hypotheticals, moving now from the field of scholarly translation to that of abstract painting, where unfettered originality would seem most feasible.

* Artist A notices a pleasing pattern on the floor of a hardware store, where countless people have carelessly dripped paint. Artist A purchases that section of the floor and hangs it in her studio.

* Artist B tosses paint buckets in the air and lets the paint fall where it may.

* Artist C paints a canvas with painstaking care, but the position and color of each drop of paint is determined by rolling a pair of dice.

* Artist D paints spontaneously, with little conscious thought, her brush guided by the inspiration of her subconscious mind. (14)

Except perhaps in the case of Artist A, the works are not copied, either from prior works or from the world. Each work is, in that sense, original. Each artist, again with the possible exception of Artist A, is physically involved in the creation of the work and is, therefore, a "maker." Yet each work is to a substantial degree indeterminate--that is, it is formed by agencies other than the artist's conscious will. One could argue that Artist A is not the author of her work, any more than if she had acquired the work of another artist and claimed it as her own. In the terminology of Feist, she did not create the work, she discovered it. (15) However, if that is true of Artist A, the same might be said of the remaining artists, who, in different ways, discovered their works as they were created. Are any of these artists authors of their works, and can they claim the intellectual property rights to which authors are entitled?

Although indeterminacy is an element in many conventional works of authorship, (16) works dominated by random processes are comparatively exotic creatures, inhabiting the realm of what David Nimmer calls "extreme copyright." (17) They are useful, nevertheless, because they focus one's attention on some fundamental questions about the nature of authorship and the function of copyright. Wholly indeterminate works have been held uncopyrightable because some cognitive component essential to an original work of authorship is missing: mental effort, intention, personality, or meaning. (18) In the discussion that follows, I will challenge that conclusion, or at least demonstrate its potential inconsistency with some broader principles of copyright doctrine. It is easy to say that works lacking that cognitive element are not works of authorship; it is surprisingly difficult to say why not. In fact, with only some facetiousness, one could argue that indeterminate works are authorship's purest expression evidence that the deeper one digs, the more elusive the conceptual "bedrock" proves to be.

In Part I, I examine authorship and originality as the courts have defined them, including those instances where the subject of indeterminacy has been specifically addressed. With one notable exception, (19) courts have generally viewed indeterminacy and authorship as incompatible. In Part II, I discuss the use of indeterminate processes in the arts, concentrating on the works of Jean Arp, Marcel Duchamp, and John Cage. Through their experiments with the processes of creation, these highly "original" (20) artists defied conventional expectations of authorship, while giving us some clues to the possible aesthetic function of indeterminacy. Part III examines, in abbreviated fashion, the theoretical foundations of copyright and intellectual property in general. I specifically discuss the natural rights and public benefits justifications for copyright and their relationship to the concepts of authorship and originality. In Part IV, I make the case for defining authorship in a way that includes, with significant caveats, at least some indeterminate works.

Issues of authorship have been much discussed in recent times, perhaps because of a sense of uncertainty as to the direction intellectual property law is taking us. I share the view of many academics that expanding property rights encroaches too much on the public domain. (21) I am therefore hesitant, in some respects, to tug at the foundations of copyright, for fear that another wall could tumble and even more things become "propertized." At the same time, I believe that intellectual property law deserves as sound and consistent a theoretical basis as we can supply. We need to ask provocative questions, if only to confirm that we really understand what we think we understand. If nothing else, indeterminacy is a fertile source of provocative questions.

1. "AUTHORSHIP" AND "ORIGINALITY"

   Article I, Section 8, Clause 8 of the United States Constitution empowers Congress "[t]o promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings...." (22) Although "science" now refers to the fruits of the scientific method, in the late-eighteenth century it referred to knowledge or learning in general. (23) The same clause permits Congress "[t]o promote the Progress of ... useful Arts" by granting "inventors," for limited times, exclusive rights to their "discoveries." (24) "[U]seful arts" might be described today as "technology." (25) The language referring to authors and writings is the foundation of copyright law, as the language referring to inventors and discoveries is the foundation of patent law. (26)

   The Framers of the Constitution disfavored monopolies, (27) so the provision for "exclusive rights" is a limited one. Not only must those rights expire, enduring only for "limited times," they are confined to certain people (authors and inventors) for certain kinds of achievements (writings and discoveries) for an explicitly articulated goal (to "promote the progress" of knowledge and technology). The parallel threads that weave through the constitutional language, one referring to the writings of authors and the other to the discoveries of inventors, (28) establish a copyright/patent dichotomy useful for understanding the limits of either. Whatever an "author" may be, it must be something different than an "inventor" or the Constitution would refer to them collectively. By the same reasoning, a "writing" must be something other than a "discovery." (29)

   On the other hand, copyright law has never confined "author" and "writing" to their narrowest senses. The earliest copyright statutes included maps and charts as...