The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue that digital technologies and the explosion of amateur art challenge the usefulness of creativity as the organizing principle for copyright law. I propose that knowledge should be restored as copyright’s core concept. I illustrate that argument with the art and writing of Vincent van Gogh, who is often used to illustrate the idea of the prototypically creative author, and I draw out some implications from the proposal in terms of legal doctrines that relate to producing, distributing, conserving, accessing, and sharing knowledge.
Michael J. Madison,
Beyond Creativity: Copyright as Knowledge Law,
Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.pitt.edu/fac_articles/212