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Madison, Michael J. --- "Creativity and Craft" [2011] ELECD 427; in Ghosh, Shubha; Malloy, Paul Robin (eds), "Creativity, Law and Entrepreneurship" (Edward Elgar Publishing, 2011)

Book Title: Creativity, Law and Entrepreneurship

Editor(s): Ghosh, Shubha; Malloy, Paul Robin

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449879

Section: Chapter 3

Section Title: Creativity and Craft

Author(s): Madison, Michael J.

Number of pages: 27

Extract:

3. Creativity and craft
Michael J. Madison

INTRODUCTION

Consider objects, which I call things. It is widely acknowledged that things
can be creative; they are made by creators. If that is true, then why can't
things be copyrighted?1 That puzzle and its implications are the subjects
of this chapter.
The Supreme Court has confirmed that copyright law is designed to
encourage the production and distribution of `creative' works of author-
ship, or `creativity,' to use a common shorthand.2 I take that premise
as given. It is well known, nonetheless, that not all creativity is equally
encouraged by copyright, even in light of what has become known as
the law's `aesthetic nondiscrimination principle'.3 Creativity that neither
differs in a minimally creative way from its source nor originates with the
work's author cannot be protected by copyright.4 `Facts' are arguably
created by human agency yet cannot be protected by copyright.5 `Ideas'
that are wholly the product of creative human imagination cannot be
the subject of copyright, though under some circumstances ideas may be
patented; copyright protects original `expression'.6 Only creativity that
is `fixed in a tangible medium of expression' can be the subject matter
of copyright.7 `Unfixed' creativity, such as the improvisations of a jazz
performance, lies beyond the scope of statutory copyright and, since
statutory copyright preempts equivalent state law,8 may disappear from
legal protection altogether. Copyright courts tell us that the law does not
discriminate among creators and creativity. ...