Fresh Scholarship on Copyright

For quite some time, too long perhaps, a considerable amount of academic scholarship has trended toward focus on copyright’s negative effects, or at least doubt its positive effects, without adequate analysis of the creative process itself.  When viewing the market, and especially creators, many academic views I have encountered appear to look solely at finished works, how the market interacts with those works, and then to interpolate from these data the creative process that generated the works in the first place.  As such, many attempts to reinvestigate copyright’s role in incentivizing production are incomplete. To quote from a new academic article that will be published in the March 2015 issue of the Harvard Law Review, “Copyright’s incentives/access debate has done a good job recognizing the risks. Yet it has all but ignored the rewards.”

At last, a legal scholar has emerged who has taken a scientific approach to examine the creative process in an effort to better understand copyright’s generative benefits.  Joseph P. Fishman, Climenko Fellow & Lecturer at Harvard Law School, is the first academic to my knowledge who has attempted to express in analytical terms what I believe most artists understand intuitively — that constraint is always part of the creative process, and that copyright’s constraints very likely produce a greater diversity of works than we would see in a market without such constraints.

In his paper, Fishman refutes the often misguided assumption that creative people require “absolute freedom” in order to be more creative.  Artists and creative producers understand that a process without constraints (or boundaries) is not a process at all but a road to madness or failure or both.  A novelist does not arbitrarily pick themes and plot devices and language as she goes, but makes firm choices and either sticks to them or changes them wholesale in the book in order to produce a story that her readers will want to follow.  Most of us are familiar with the Michelangelo-attributed quote about sculpting being the act of “cutting away everything that is not the angel.”  Fishman has quantified that metaphor in his paper titled Creating Around Copyright.

The title refers to a well-established and accepted benefit of patent law that “working around” patents generates the kind of diversity of useful inventions that benefit society exactly as intended.  Fishman’s thesis asks why this same working around principle is not applied to legal scholarship on the subject of copyright.  Why would working around copyright not be as diversely generative as working around patents?  Experientially, creators will tell you that it is.  And now Mr. Fishman has applied legal theory that corresponds with that experience.

Last July, I wrote this post describing how the creative process is always about working around obstacles and that obstacles — legal, financial, physical, logistical, and internal — are often the most important catalysts to producing unanticipated, creative solutions that themselves become the signature elements that give a work its unique or masterful qualities.  Shortly after publishing that piece, Fishman contacted me, still in the early stages of writing his paper.  We spoke for a while, and his article does cite that October post, but what I did not know was that he would produce such a thorough and scientifically-based explanation of what artists throughout history have consistently described anecdotally.

Citing extensive psychological research into the creative process, Fishman demonstrates that there is an optimal balance to be maintained between constraint and freedom.  Too much constraint fails to produce creative diversity, but so does too little constraint.  In order to view the creative process as a science, Fishman rightly describes artistic work as an exercise in problem solving no different from the activities of a scientist or technologist.  We tend to talk about the arts in emotional or poetic terms, but Fishman is right that the process is entirely analogous to problem identification and solution.  As such, the psychological experiments to which Fishman refers throughout his article suggest that a purely “open” process free of constraints produces less creative variation than a process with the right amount and right types of constraints.

Fishman contrasts various experiments in constraint with the path-of-least-resistance approach (i.e. freeform) to creative development; and in a copyright context, a path of least resistance might be the ability, for instance, to riff off any existing creative works without the permission of rights holders.  But Fishman explains, “Following this path of least resistance inhibits originality, and hence creativity, by launching a mimetic approach to problem solving.”  To translate that into a contemporary example:  the world would be more boring with a hundred simultaneously available Sherlock Holmes derivatives than with, say, one or two of those while creators are forced to invent other works.

One analogy that came to mind while reading Fishman’s article was child-raising.  You’re probably familiar either with the concept or the unfortunate experience of the young child whose parents allow him to “express himself” insofar as he is given few if any boundaries.  Those of us who have witnessed this catastrophe in action know that the unbounded child is not only a brat, but is a thoroughly unoriginal brat incapable of producing creative solutions, even if his parents might see genius in his mischief.  But the child who is given appropriate boundaries balanced with appropriate freedoms will produce volumes of creative work though play acting, building, arts and crafts, etc.  As engaged parents, we constantly try to find that balance between constraint and freedom that produces a person capable of creative (i.e. original) problem-solving skills, but we know for sure that the child without any constraints is a recipe for trouble.  It seems to me that Fishman is seeking an analogous balance with copyright law.

The article even goes so far as to create a taxonomy of constraints, identifying seven properties for examination with regard to their generative or restrictive effects.  With the first of these properties, Source, he discusses chosen vs imposed constraints, which is an interesting and important division to recognize.  An artist or group of artists will embark on a project with myriad imposed constraints (time and money always at the top of the list), and will need to pick a number of chosen constraints that actually give shape, texture, and voice to the finished product.  I would add to this taxonomy a third subcategory under Source that most artists probably understand, and this would be innate or internal constraints.   In fact, any artist who looks first at external constraints and not at internal ones may have to consider the possibility that his biggest barrier is that he is not in fact an artist.

 When I was still in college, I spent some time thinking about various artistic media in terms of their constraints, operating from the premise that these boundaries are in fact what define each medium and are, therefore, the source of their power to affect us as we want art to do. After all, when one attends a class in a medium, say photography, discussion begins with the boundaries of the medium, even though we don’t usually think of it that way.  New photo students will begin to consider composition, light, two-dimensionality, color, all of which are boundaries that define a thing we call a photograph as something distinct from, say, looking at the subject of that photograph in real life.  Or to put it another way, a constraint on a photograph is that it cannot make a sound, but a power that it has is that it can make the viewer perceive sound without hearing it and thus offer an experience that re-contextualizes “real life,” which is what art is supposed to do.

This contemplation of boundaries is particularly relevant, I believe, to filmmakers because film more than any other medium trades on a gestalt that what is being experienced is “real.”  Even the most fantastic on-screen world in a narrative film tends to draw viewers into an immersive experience that is more visceral than with other media.  Additionally, the hundreds of dynamic variables, choices, and obstacles that are constantly being managed in order to complete a motion picture ought to make filmmakers particularly cognizant of the generative power of constraint.  The line between an imposed workaround and a brilliant creative choice is so blurry as to be absurd.

In his article, Fishman mentions standup comedy, which is a medium that probably deserves more study than it gets in this context. He writes,  “In stand-up comedy, for instance, the reputational cost of appropriating others’ jokes stimulates continued innovation in developing new ones.”  What’s interesting about that world is that comedians don’t need copyright per se to protect their jokes because it is an unspoken rule that stealing someone else’s material will very quickly ostracize the thief from both fans and peers.  Some might view this as evidence of copyright’s irrelevance, but to Fishman’s point, it should be viewed as an endorsement of constraint’s generative capacity.  The accepted boundaries among comedians force them to work harder to find their own voices, which adds to the diversity of comedy rather than homogenize the medium.

It is heartening to see a legal scholar make the effort to examine the pros and cons of copyright from a creative-process perspective.  It is also about time.  I sincerely hope others in Mr. Fishman’s field take note.

See Working Around Copyright by Joseph P. Fishman here.

© 2014 – 2016, David Newhoff. All rights reserved.

Follow IOM on social media:


  • Nice post. You might be interested the Hugh Laddie lecture I just gave in London. It is critical of the culture of the public domain and the historical claim that incentivation was and has been the policy behind copyright.

    • David Newhoff

      Thank you, Professor. I look forward to watching the video.

      I’ll add to this that I have now watched the video of Professor Hansen’s talk on the Culture of the Public Domain. Anyone following this thread might find it interesting. He certainly raises a question I have asked myself, which is when did the public domain become perceived as this great pool of creative DNA rather than simply the demarcation point at which a copyright expires? I agree with Hugh Hansen that this culture is a digital-age idea largely sponsored by the tech industry. Artists and other creators really don’t see the public domain the way in which it is often described by those speaking for Silicon Valley.

      • Artists and other creators really don’t see the public domain the way in which it is often described by those speaking for Silicon Valley.

        I think it has to do with the way programmer/coders work. It’s very common, as far as I can tell, for a web designer to run into a problem (say a flash video player doesn’t load correctly) and simply Google away until they find the relevant code, then copy and paste away. This makes a lot of sense in that domain, and I can see why programmers are so fond of the public domain-like nature of coding.

        Musicians, and perhaps artists in general, don’t use the public domain in the same manner. A problem that might arise for a musician would be stumbling to find a way to resolve a chord progression, or a way to modulate keys to add a bridge to a song. In such a case, I might look to another song that has a similar harmonic structure and study how that composer sought resolution. The problem is that sufficiently complex music is incredibly situation-specific; simply copying a chord will rarely work. I have to gather a deep understanding of both my song and the inspiration, and most of the time even that won’t deliver the answer in some copy-ready manner. I’ll have to find a way to fit the idea into my situation-specific song.

        All kinds of constraints might dictate a new direction I have to take, something that wasn’t available or apparent to the composer from whom I am taking my cues. Maybe I don’t have the finger-span to actually play the same chord progression. Maybe I’m writing for guitar, and the inspiration is a piano piece, which means I have to find a new voicing for the chords. Maybe I have to invert a chord. Maybe I accidentally hit a note that is flat for the scale and invent the blues.

        Notice that none of this music stuff actually requires that any works be in the public domain. I can take apart a song released this week and legally utilize the underlying theory.

      • Patrik–
        “Notice that none of this music stuff actually requires that any works be in the public domain. I can take apart a song released this week and legally utilize the underlying theory.”

        That’s actually one of the reasons that it would be a good idea to strengthen copyright formalities. All copyrighted works should be deposited, of course, for numerous reasons (metes and bounds, preservation, public availability, etc.). But requiring a more stringent deposit requirement for software, on par with the strong disclosure requirement of patents, wouldood for software. Copyright for software could be made conditional on depositing not only binaries, but also thoroughly commented source code, instructions concerning compilation, and so on, in order to enable and encourage the public to not only enjoy the works as they are, but to see how they work, to borrow non-copyrightable material from them, and to learn from them, just as is the case for, say, a novel. As with patents, trade secrets could not coexist with copyrights as to the same material.

        I think that such a ‘supplementary deposit’ requirement would mostly be applied to software, but it could have use in other, complex situations. (Perhaps individual elements compiled together in a single, complex film shot)

        Facilitating greater and easier use of works outside of the bounds of copyright, and greater learning even within copyright, all sounds like a good idea that promotes the progress of science to me.

        Storytelling is a tradition that goes back to before recorded history, and storytellers have never seemed to shy away from copying from preexisting material. Virgil’s Aeneid is just fanfic of Homer’s epic poems. Shakespeare ripped off his predecessors, just as they did to theirs. Even today, you get a new Robin Hood or King Arthur or Dracula or Sherlock Holmes on a fairly routine basis. (There’s what, one big Holmes film series and two popular Holmes tv series all going on simultaneously at the moment? They’re all well-liked, it seems.)

        Nor is celebration of the public domain a recent phenomenon; there was a old radio recording from somewhere in the 30s or 40s I think, in which various characters were portrayed as entering the public domain (like it was a place), and explaining what it meant, in a vaguely educational sort of way. Sadly I don’t recall it well enough to have any luck finding it, but perhaps someone else will remember it, or have better luck.

      • David Newhoff

        Anonymous, all that is true, but often oversimplified so that it translates into the false logic implying more stuff in the PD must invariably produce more new variations and more creative works overall. Case-by-case, however, we find the story to be more nuanced. More to the point, though, as I have indicated anecdotally and Fishman seeks to quantify analytically, constraints are everywhere in the creative process, and they are multi-dimensional. Therefore, in really simple terms, contemporary complaints that X character or Y storyline is still protected sounds petty to creators, who know what the real work looks and feels like. Creative people eat obstacles for breakfast.

      • The Google a solution in software is indeed a very common practice. One which I try to stamp out as often the Google’d solution is NOT the best way to do something. Fortunately for most of what they do Google is useless as there are no solutions to the problems faced by our developers. What we have in our application area (CAD/CAM) are a number of Companies creating software and within group there are a handful of companies that produce algorithmic libraries, the bulk buy in the algorithms and differentiate on the UI around them.

        Developing a new or improved algorithm is an expensive business, it can take several man years of work and cooperation between the software company, the tool manufacturer, the machine manufacturer, and large engineering conglomerates. This is why algorithmic development is done by a small number of companies and the rest buy in the technology. The development of our latest algorithm took 10 man years. You will find no high end PD or FOSS solutions. As I recall the FSF once managed some block diagrams of how a CAD/CAM system might be structured, and another group once finalized on a logo for their project.

  • Copyright from a creator’s perspective does as intended. It fosters innovation and encourages creativity. That i can’t use someone else’s popular work (without exemptions or agreements) makes me come up with fresh material. it keeps the ball rolling. Over time stuff gets recycled and added to the “vocabulary” but wholesale copying is not allowed. This is a good thing, and advances our culture and economy.

  • David,
    “more stuff in the PD must invariably produce more new variations and more creative works overall”

    No, but it necessarily must provide more opportunity for more new variations and more creative works. Whether or not more are actually produced is up to artists. The point is to let the decision be in their hands.

    Which is why Fishman’s article is garbage. He’s right that constraints can indeed be useful to artists, but then he goes way too far in suggesting that society should impose them, for artists’ own good.

    You’re a filmmaker, David: It’s up to you to decide whether you want to make a movie in black and white, or in color; with or without sound; fiction or non-fiction; within a particular genre, or defying easy categorization; etc. If you want to cooperate with someone, you can, or you can go it alone. Collaborators — especially if you rely on them for money — may be able to give you notes, or outright control the work, but it was your decision to give them that power over you, and you can always walk away.

    But if the government said that you had to abide by the Hays Code, it had to be a silent movie, and it had to have patriotic themes and also support the current political administration, I’m sure that you would instantly decry this infringement on your right to make the movie you wanted to make without outside interference. And even if it could be proven with absolute mathematical certainty that your movies under such a regime would be more creative than if you had the freedom to make your own decisions, you’d still be upset, and rightly so.

    Copyright is no different. We don’t impose it in order to “help” artists reach new heights of creativity that they might not have otherwise. The idea is ludicrous, particularly if you look at the actual copyright laws that exist, which clearly have no such basis at all. It’s a simple economic subsidy, which is interesting because it’s market funded, rather than government funded, like an arts grant would be.

    If copyright were concerned with creativity, why does it permit authors to create works which are derivative of their own works? Why does it allow a public domain at all? Why does it give any exclusive rights to authors, when they could be more conveniently held by the government? After all, to the artist who is prohibited from creating a work, it doesn’t matter who is issuing the prohibition.

    Fishman’s hypothesis fails to explain the facts, is offensively paternalistic, and is pro-censorship.

    If you’re going to argue in favor of copyright maximalism, inclusive of the status quo, please try to put in an honest effort. This was too far of a stretch, and it’s just ridiculous.

    • David Newhoff

      I’m sorry that you think Fishman’s paper is garbage, Anonymous, but there are fundamental differences here that aren’t going to be addressed through discourse. You’ve shown yourself to be interested in the exchange of ideas, and many of those exchanges have certainly been enlightening for me, even if we disagree. In fact, the only reason I’ve abandoned certain threads is due to lack of time not lack of interest. In this case, however, you reveal premises that are anathema to my way of thinking as well as nearly every artist I’ve ever known, and more than a few legal scholars. Namely, you see copyright as a restriction on speech and a government-imposed restriction at that, which is to say state-sponsored censorship.

      If nothing else, the anecdotal evidence rejects your foundations. Artists (i.e. people who take their work seriously) simply don’t view copyright as a major barrier to creating new works. To the contrary, they see copyright as a codified boundary of respect for one another’s work. Those contemporary, would-be creators who do see copyright as a barrier to their work are not artists; they are dilettantes. Until the all-digital generation came of age, I NEVER met a creative individual who hung up his pen, camera, paintbrush, dance shoes, etc. because somehow all the creative ideas (i.e. solutions) had been sequestered by copyrights. To argue to the contrary is ridiculous. Take any single them — hopeless love — and look at the diverse range of works that are generated from that theme while creators who don’t know one another only rarely cross lines defined by copyright.

      None of this was an issue until Internet companies decided to make it an issue because it serves their bottom line.

      • bingo.

        ..and i love it that the non-artist is always coming here to tell artists what they think. I don’t haunt the legal forums giving legal advice (and that’s not to say that i think your comments are unwelcome, anon, to the contrary.. just that your line of reasoning isn’t representative of ours, and i wish you wouldn’t pretend it is. )

  • David–
    “If nothing else, the anecdotal evidence rejects your foundations. Artists (i.e. people who take their work seriously) simply don’t view copyright as a major barrier to creating new works. To the contrary, they see copyright as a codified boundary of respect for one another’s work.”

    Are we talking about the same anecdotes? From Fishman’s paper:

    “[M]any DJs find creative inspiration in transcending the limitations that copyright imposes. One described various layering techniques he uses to ‘camouflage’ unlicensed samples, which, in his words, ‘put[s] some creativity into it as opposed to just straight thievery.’ … ‘So yeah, you tend to take less obvious bits of records and obviously you hunt for more obscure records, or you chop something within an inch of its life so even you’ve forgotten what you sampled'”

    Hiding infringing samples so that you don’t get caught doesn’t sound too respectful to me.

    “Those contemporary, would-be creators who do see copyright as a barrier to their work are not artists; they are dilettantes.”

    Copyright law makes no such distinction; It treats the professional and the amateur just the same. Don’t be a snob, don’t commit the “No True Scotsman” fallacy, and certainly don’t take that next step and start deciding what is and isn’t art. Consider E.L. James — did she only become an artist by changing a few names and filing off the serial numbers, as it were?

    I’ve seen enough fan art in my day to know perfectly well that it is just as good as anything else. (That is, some is good, some is bad — just as with non-infringing works)

    I suppose I could agree with you if you mean that a dilettante would honor copyright and not pursue creating a work if it infringed, while a real artist would eat the obstacle of copyright for breakfast, by ignoring it and doing what he was going to do anyway. But I somehow doubt that’s what you meant, or want.

    “Until the all-digital generation came of age, I NEVER met a creative individual who hung up his pen, camera, paintbrush, dance shoes, etc. because somehow all the creative ideas (i.e. solutions) had been sequestered by copyrights.”

    I’ve never met any such people even now. Like I said, they’ll just roll right over copyrights too; countless numbers of them. Copyright doesn’t limit their creativity because they ignore it. It’s only harmful to them if the copyright holders enforce it — often against those who are such big fans that they want to participate as closely as possible!

    “None of this was an issue until Internet companies decided to make it an issue because it serves their bottom line.”

    Yes, yes, David, show us on the doll where the Internet touched you, because we all know that all evil comes from there. You think that the publishing industries are charities, and that money is the furthest thing from their minds? I can’t help but think of the end of that Simpsons episode where the broke movie producer and director return to LA, with nothing to show, and they’re told that it doesn’t matter that they’re out of money; they can take whatever they want from the local boutiques until they’re back on their feet, because in Hollywood, people treat each other right.

    Copyright has caused problems like this long before the Internet arrived — look at Murnau’s Nosferatu, which is not only an absolute classic movie, considered one of the best of all time, but which was also found to be an infringing adaptation of Stoker’s Dracula novel. A court had all the copies of the film destroyed. Except one, which had made it to the US, and thanks to our formalities requirements putting a stake through the heart of the copyright, managed to survive. We are better off with it than without it. Film historians and horror buffs alike would literally mourn its loss if copyright had won the day. (The Bela Lugosi Dracula was authorized, but Universal didn’t need a license for a US release, and it appears that this allowed them to pressure Stoker’s wife into making a deal)

    Really, Internet companies don’t particularly care one way or the other about copyright. They’re just interested in providing enough good customer service that they have a large user base. As it turns out, it’s users that don’t like to have to pay for things, and don’t like to find out that some things are not available due to boring licensing issues.

    “Namely, you see copyright as a restriction on speech and a government-imposed restriction at that, which is to say state-sponsored censorship.”

    We’ve discussed this at length before, but it is. That doesn’t mean that I’m not prepared to live with it, under the right circumstances, but when I see a vicious tiger, I don’t pretend it’s a cute kitty cat.

    “..and i love it that the non-artist is always coming here to tell artists what they think”

    Who said I’m not an artist? I’m no longer a professional artist, having changed careers, but I used to be. How did you think I got interested in copyright to begin with?

    • Anonymous, you do like a lengthy reply, which is fine, but I just have too many other things on my plate to get into all of that. The one thing I’ll make clear is that I don’t draw the line at all at amateur vs. professional (ergo you’re presumably still an artist), and it goes without saying that there are professional (i.e. sold) works that suck and amateur (i.e. unsold) works that are brilliant. Are the works I have pitched, came close to selling, but did not sell amateur works or professional works? My definition, and I believe it is shared by other creators, is the personal approach one takes to the work. So, if a fanfic writer finds herself frustrated that she can only take her James Bond derivative so far and has nothing left to write, then yeah I’m inclined to call that being a dilettante.

  • David,
    So hanging up your spurs is what makes you a dilettante? Margaret Mitchell, or Harper Lee, neither of whom published anything after their one big hits would be examples?

    That’s an interesting position, but not quite how I see it. I’d define a dilettante artist as someone who lacks commitment at any time; a dabbler from start to finish. If Alice and Bob both want to write Great American Novels, what makes Alice a proper write, and Bob a dilettante, is that Alice keeps at it, while Bob half-heartedly pecks away, once in a while, never really putting his all into it.

    But what’s missing here is originality. It’s not relevant. Maybe Alice writes the defining book of her generation — it’s got pathos, it’s got action, it’s got a timeless theme, yet has something important to say about modern affairs, it’s simple enough to draw in a wide swathe of readers, yet has subtle layers of complexity that will be fodder for critical analysis for legions of English students. Also the main character is Batman.

    Copyright is an arbitrary line. If Alice writes a sequel to a book first published in 1923, and still in copyright, that no more makes her a dilettante than writing a sequel to a book first published in 1922, and in the public domain allows her to be a real author. Likewise, there’s been five or six authorized James Bond authors since Fleming, I am personally acquainted with a fellow who has written an authorized Godfather sequel, and whatshisface Gregory Macguire wrote an unauthorized Wizard of Oz prequel which became a Broadway musical and a movie.

    Yes, commitment is, I think, the touchstone we’re looking for. If an author is committed to creating an infringing work, he will not allow copyright to stop him, nor will he heed it and bother to ‘create around’ it. Losing the commercial viability of a work, or even risking fines or prison time if he pursues their vision seems to me to only strengthen the proposition that such an artist is not a dilettante.

    • David Newhoff

      Anonymous, you’ve purposely or inadvertently misconstrued what I said and run with it here. You seem to have interpreted what I said as an assertion that all derivative works are created by dilettantes, and I have no idea why. I am simply pointing out that I have yet to encounter a serious creator, with or without commercial ambitions, who finds copyrights on existing works to be prohibitive to their own work — and that work may even be derivative. Your point is that someone willing to commit to producing, even in the face of infringement, is not a dilettante, and this goes without saying.

      Yes, commitment is a perfectly good defining term, and copyright may be arbitrary, but every other barrier to an author’s work is arbitrary as well. And hypotheticals work in any direction we choose. You can point to Alice’s seminal work whose protagonist is Batman, indicating her commitment to ignore copyright to fulfill her vision; and I can just as easily amend the hypothetical to predict an outcome in which her novel is better because she accepted the barrier of copyright, abandoned Batman, and came up with something new. In this scenario, the creator has to ask herself why she wants her character to be the actual Batman rather than her own interpretation of a moody vigilante. Is the decision about storytelling or marketing? Which decision delivers to the public the fresher work? Very hard to say.

      Individual by individual, one can point to examples or hypotheticals in which either working around copyright or ignoring copyright yields a result, but a “better” result is subjective, especially in the form of a predicted outcome. Fishman’s thesis argues that on the whole (for the public good if you will), creators who respect the boundaries of copyright likely generate a greater diversity of works. Overall, I agree, and we do see a fairly substantial body of work being produced without endless copyright conflicts.

      I’m not sure what point you’re making with your examples of derivative works. “Wicked,” for instance is brilliant, but I don’t know the deal or where the copyright stands on “The Wonderful Wizard of Oz,” which was published in 1900. I assume this paragraph is just proving that there are derivative works out there not created by dilettantes, which is fine but stems from what appears to be a misunderstanding of what I said in the first place.

  • Pingback: On Rights and Accuracy in Movies - The Illusion of MoreThe Illusion of More

  • Pingback: It's called being creative. On memes and copyright. - The Illusion of MoreThe Illusion of More

  • Pingback: When Copyright Criticism Is Something Else - The Illusion of MoreThe Illusion of More

Join the discussion.

This site uses Akismet to reduce spam. Learn how your comment data is processed.