The Soul of Creativity: Forging a Moral Rights Law for the United States - Softcover

Kwall, Roberta Rosenthal

Softcover

ISBN 10: 0804763674 ISBN 13: 9780804763677

Verlag: STANFORD LAW BOOKS, 2009

Inhaltsangabe

In the United States, human creativity is historically understood to be motivated by economic concerns. However, this perspective fails to account for the reality that human creativity is also often the result of internal motivations having nothing to do with money. This book addresses what motivates human creativity and how the law governing authors' rights should be shaped in response to these motivations.

On a practical level, it illustrates how integrating a fuller appreciation of the inspirational dimension of the creative process will allow us to think more expansively about legal protections for authors. Many types of creators currently lack the legal ability to compel attribution for their work, to prevent misattribution, and to safeguard their work from unwanted modifications. Drawing from a number of diverse sources, including literary, philosophical, and religious works, this book offers real solutions for crafting legal measures that facilitate an author's ability to safeguard his or her work without entirely sacrificing the intellectual property policies in practice in the United States today.

Über diesen Titel

Über die Autorin bzw. den Autor

Roberta Rosenthal Kwall is the Raymond P. Niro Professor of Intellectual Property Law and the Founding Director of the Center for Intellectual Property Law & Information Technology at DePaul University College of Law.

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

THE SOUL OF CREATIVITY

FORGING A MORAL RIGHTS LAW FOR THE UNITED STATESBy Roberta Rosenthal Kwall

Stanford University Press

Copyright © 2010 Board of Trustees of the Leland Stanford Junior
All right reserved.
ISBN: 978-0-8047-6367-7

Contents

Acknowledgments...............................................................ixIntroduction..................................................................xiii1 Authorship and Textual Integrity............................................12 The Intrinsic Dimension of Human Creativity.................................113 The Current Legal Framework.................................................234 International Norms.........................................................375 Ownership of the Author's Message and the Public Domain.....................536 Marginally Original and Functional Works of Authorship......................697 Authors in Disguise and Collaborative Works.................................878 Personas....................................................................1119 Human Rights Laws and Authorship Norms......................................13310 Looking Forward to Legal Reform............................................147Notes.........................................................................167Index.........................................................................237

Chapter One

Authorship and Textual Integrity

A skeptic might assert that it is wrong for people to identify with the intellectual products of their capacities and therefore, would question whether individuals should have any particular entitlements to such products. Justin Hughes fittingly captured this view with the following observation: "To transpose Robert Nozick's classic query, why should we think putting our personality out into the world gives us rights to the things we create? Why should we not assume that when we mix our personality with the world, we lose part of our personality instead of gaining part of the world?" Postmodernist skeptics advance the related argument that no single work manifests creativity and innovation deriving from a unitary source. Drawing on this view, legal scholars have criticized copyright law as a whole for its implicit reliance on the Romantic view of authorship. If true artistic creativity is, in essence, a fiction, then no reason exists for privileging authors above other producers when it comes to issues of textual integrity.

Moreover, literary theorists document that the concept of "authorship," as we understand that term today, is a relatively recent phenomenon that began to take shape in the eighteenth century. English professor Martha Woodmansee reminds us that how we see the concept of "authorship" today was not inevitable given that the heritage of the Renaissance was to view authors as either "craftsmen" who mastered what was put before them for the enjoyment of the "cultivated audience of the court," or alternatively as "inspired" by external forces. The idea that an author is personally responsible for her work may be inconsistent with the first, and perhaps even to some degree with the second, of these conceptions. According to Woodmansee, the notion of personal responsibility emerged later, in part as a result of the influence by a class of professional writers in the eighteenth century who sought to justify legal protection for their efforts.

To some there is appeal in the view that once we create we should lose that which we have infused in our work. I suggest, however, that the rationale underlying this position contradicts the norms of artistic protection. Although authors freely borrow from the landscape of existing cultural production, a work of creative authorship nonetheless manifests the author's individual process of creativity and artistic autonomy. The postmodern critique ignores the reality that when an author borrows from the cultural fabric in crafting her work, it is still the unique combination of past efforts and the author's original contributions that invests the author's work with its autonomous unique and inviolate stamp. As Fred Yen has observed: "Authorship is therefore not the creation of works which spring like Athena from the head of Zeus, but the conscious and unconscious intake, digestion, and transformation of input gained from the author's experience within a broader society." Perhaps the authorship construct in which we indulge today was "neither natural nor inevitable," but it is without doubt the one that has prevailed and thus, cannot be completely eliminated from the discourse. Further, by questioning the ability of authors to draw upon personal originality as their creative inspiration, notwithstanding liberal borrowing from the existing artistic landscape, the postmodern scholars arguably do not sufficiently account for the inspirational dimension of authorship. Indeed, the very act of authorship entails an infusion of the creator's mind, heart, and soul into her work. Many authors of creative works maintain a certain type of relationship with their artistic "children." This relationship is unique among other types of human production given the highly personalized and intrinsic nature of creative authorship.

Although a creator's audience may indeed find meaning in a creator's work that is distinct from the author's, the focus here is on a "meaning" and "message" personal to the creator. Courts use the words meaning and message together, but typically they do not define or distinguish these terms. The concepts of a work's "meaning" and "message" as used in this book are related in that they are dependent upon the creator's subjective vision rather than the vision of the creator's audience, but these terms nonetheless embrace somewhat distinct ideas. The creator's meaning personifies what the work stands for on a level personal to the author, whereas the creator's message represents what the author is intending to communicate externally on a more universal level. A work's "meaning" therefore exemplifies the idea of "why I as the creator got involved in doing this work and what I see in it." In contrast, a work's "message" embodies the notion of "what I as creator expect others to see in it, and what I hope they'll take from it."

Let's unbundle these concepts with an example. In my office hangs an exquisite colorful print called Bereshit Micrography by Leon Azoulay. The print contains the complete book of Genesis executed in Hebrew microcalligraphy and depicts the Creation, Noah's ark and a rainbow, and other images from the book of Genesis. Although I cannot say with certainty what the meaning of this work is for the author, one could posit that he created this edition of 350 prints as a testament to the mysteries of Divine creation. Azoulay was raised in the ancient town of Tsfat, Israel, the birthplace of Jewish mysticism known as Kabbalah. His biography indicates that this environment inspired him to search for a means of expressing his passion for both painting and the Bible. Azoulay's personal meaning essentially can be viewed as including what ever qualities he believes the work intrinsically embodies. The message of the print, on the other hand, is the narrative the author seeks to communicate to his audience. The author's message likely will include his own personal meaning but it might also extend beyond it. For example, hypothetically speaking, Azoulay's microcalligraphy of Genesis may be intended to communicate that unless man controls his evil tendencies, suffering will occur as it did in the Garden of...

Details zur Ausgabe

• Verlag: STANFORD LAW BOOKS
• Erscheinungsdatum: 2009
• Sprache: Englisch
• ISBN 10: 0804763674
• ISBN 13: 9780804763677
• Einband: Taschenbuch
• Anzahl der Seiten: 247
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: preigu; mail@preigu.de; ; Lengericher Landstr. 19; Osnabrück; 49078; Deutschland