THERE'S NO SUCH THING AS INDEPENDENT CREATION, AND IT'S A GOOD THING, TOO.

• Author: Buccafusco, Christopher

TABLE OF CONTENTS INTRODUCTION 1620 I. THE CENTRALITY OF ORIGINALITY AND COPYING TO COPYRIGHT LAW 1623 A. Originality, Validity, and Scope 1624 B. Copying, Independent Creation, and Liability 1628 II. CREATIVITY AND MEMORY IN COPYRIGHT LAW 1633 A. Copyright Law's Psychology of Creativity and Memory 1635 B. Creativity, Copying, and Memory 1642 1. Sins of Memory 1642 2. Memory, Copying, and Creativity 1644 III. THE DISPARATE TREATMENT OF ORIGINALITY AND COPYING 1649 A. Copyright's Originality Credulity 1650 B. The Ease of Proving Copying 1653 C. Asymmetric Treatment of Originality and Copying 1658 IV. SOLVING COPYRIGHT LAW'S INDEPENDENT CREATION PROBLEM 1662 A. Balancing Validity and Infringement 1663 B. Abandoning Subconscious Copying 1665 C. The End of Independent Creation 1666 1. Independent Creation Is Useless at Best 1666 2. Similarity and Difference Are All that Matter 1669 3. Copyright Law Without Independent Creation 1671 CONCLUSION 1676 INTRODUCTION

According to the U.S. Supreme Court, "originality" is "[t]he sine qua non of copyright." (1) That a work owes its origin to an author and was not copied from another source--that is, it was independently created--provides constitutional grounding for the provision of exclusive rights in the work. (2) The dominant utilitarian approaches to copyright law foreground originality as an essential constituent of prudent copyright policy. (3) And influential theorists ground both deontological and feminist accounts of copyright law on independent creation. (4) All copyright theories champion independent creation. (5)

In U.S. copyright law, independent creation serves two fundamental doctrinal purposes. First, originality establishes the validity and scope of copyrighted works. (6) Only if an author produces a work independently is it entitled to a valid copyright. (7) If a work contains a nontrivial amount of original expression, its author can obtain a copyright in the independently created material that she contributed. (8) Thus, without originality, there is no copyright. Second, copyright liability occurs only in the absence of originality. (9) A later work infringes only if it is, at least in part, a copy of the plaintiff's work rather than a wholly original, independent creation. (10) Although the defendant's work might be identical to the plaintiff's, the plaintiff will only recover if they can prove that the defendant copied from them. (11)

There is one difficulty. Independent creation, at least as copyright law conceives of it, does not exist. The doctrine reflects an outdated and impoverished view of human creativity and memory that ignores the complex ways in which human brains actually work.

The problem is especially stark in the subconscious copying doctrine. Copyright law treats a work as copied, and thus unoriginal, regardless of whether the putative author intended to copy or even knew that they were copying another work. (12) Rights and liabilities depend on whether, when they sat down to compose a song, for example, they were doing so freshly from their own ideas or, rather, were drawing on a tune they heard years ago that lodged itself in their memory only to reappear at this inauspicious instant. But how can we know whether the author subconsciously called it to mind when they created the new work? How can we know whether, instead, the author simply forgot the previous work? And how can we know whether, given certain similarities between the works, those similarities are more likely the result of copying than independent creation? Authors themselves will often not know the answers to these questions; for outsiders, they are impossible. Yet, the foundational doctrines of copyright validity and liability rest on being able to answer these questions consistently and accurately.

Because independent creation is fundamentally unknowable, if it exists at all, courts are chasing phantoms. Phantoms cannot be caught. But courts are forced to answer an unanswerable question, to pretend to have caught the phantom. As a result, copyright law's recognition of originality will inevitably be political. Those parties that are able to claim the mantle of originality will be those that the law or markets or history favor. Successful assertions of independent creation are nothing more than rhetorical claims on behalf of creators. The law will unavoidably privilege those creators who most successfully wield its linguistic, political, and emotional tools. (13)

We see this privileging in the way copyright jurisprudence treats independent creation entirely differently for plaintiffs and for defendants. While plaintiffs' assertions of originality are regularly granted enormous deference by the Copyright Office, courts, and jurors, defendants are often presumed to have copied plaintiffs' works. (14) If a plaintiff can prove that the defendant probably experienced their work at some point in the past, then they can get to a jury as long as there are sufficient similarities between the works to make copying possible. (15) In a world of easy access to most works, this approach effectively assumes copying, and algorithmic detection of similarity will only worsen the problem. (16) By contrast, authors who register their works with the Copyright Office receive prima facie evidence of originality despite there being no meaningful examination of their works. (17) Defendants, however, often struggle at trial to introduce evidence demonstrating that aspects of the plaintiff's work already existed in the prior art and may have been copied from it. (18) The independent creation doctrine skews heavily but arbitrarily in favor of plaintiffs, as well as earlier and wealthier creators, biasing who gets to speak and create. The upshot is a failure to properly regulate cultural production.

Having established that copyright's independent creation doctrines are flawed, this Article concludes with possibilities for addressing the problem. Some salutary effects could be achieved by simply treating plaintiffs' and defendants' assertions of independent creation equally, either by leveling up our skepticism of plaintiffs or leveling down our skepticism of defendants.

More radically, copyright law should jettison questions of originality and copying entirely. A utilitarian copyright law has no need for independent creation, and it would be better off without the biases that the doctrine creates. Rather than asking whether an author copied earlier works, we might simply ask whether the work is sufficiently different from earlier works that copyright law wants to treat it as valuable--for example, valid or noninfringing. This change would focus the law's attention on what matters most, while removing the distortion and expense of litigating independent creation. Other doctrines, including the creativity standard, the idea/expression distinction, variations in scope, and damages are better able to accomplish those of copyright's goals that are currently dealt with by independent creation.

Part I of this Article introduces the central roles that originality and copying play in U.S. copyright law. Part II moves beyond legal doctrine to explore the theories of creativity and memory that undergird originality and copying jurisprudence, and it contrasts them with contemporary behavioral and cognitive science research. Part III explains how doctrinal treatment of independent creation varies substantially between plaintiffs and defendants. In so doing, it privileges some creators at the expense of others. Finally, Part IV offers possible paths forward, including the radical reorientation of copyright jurisprudence away from independent creation.

1. THE CENTRALITY OF ORIGINALITY AND COPYING TO COPYRIGHT LAW

   Independent creation is, without question, the most important doctrine in U.S. copyright law. (19) Whether a work is original--that is, independently created--is a necessary condition for it being granted a copyright, and the extent of its originality determines the copyright's scope. (20) Copying is the other side of the independent creation coin. A work is original to the extent that it contains some minimal degree of creative expression that was not copied from another source. (21) If a work is original, its author can obtain a copyright and begin earning money from it. Copying is also a requisite for copyright liability. Only when a work copies from another will it be found to infringe. (22) If a work is copied, its creator may be responsible for millions of dollars in damages. Thus, these mirror doctrines determine a considerable area of the realm of copyright law's regulation of expression. This Part provides a brief primer on copyright's originality and copying doctrines for those who are new to the field.

   1. Originality, Validity, and Scope

      Without original expression, copyright does not subsist. (23) According to a long series of precedents, (24) the Supreme Court has recognized originality as a constitutional requirement of Congress's use of the power granted to it in Article I, Section 8, Clause 8. (25) But originality, as the term is used in copyright law, doesn't mean the same thing it does to most nonlawyers.

      To be original means little more than to be not copied. (26) In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court addressed the constitutional question of whether or Congress could extend copyright protection to photographs as works of original authorship. (27) The Court found that the Constitution was broad enough to cover photographs on condition that the photograph seeking copyrightability constituted an independent creation--that it was "representative[] of original intellectual conceptions of the author." (28) According to the Court, "[a]n author... is 'he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.'" (29) Despite the defendant's argument that photography is the "mere mechanical reproduction of the...