The primary goal of this article is to show how the concept of “creativity” as defined and applied by courts in copyright cases fails to map any reasonable concept of creativity in certain critical respects. Accordingly, the first charge undertaken here is a deconstructive one—to show the lack of meaningful overlap between the legal definition of creativity and the “actual” meanings of that same term. To undertake this comparison, Part II of this Article focuses on perhaps the more easily determined of these two definitions of the term—“creativity” as defined by courts. Rather than giving an unduly broad berth to this analysis, however, the Article will limit its review to creativity as applied in the context of Feist- based threshold creativity reviews. As a matter of further distillation, such cases will be highlighted where courts rely on an alternatives-based test to find creativity. This very commonly-applied test dictates that a creator’s work is creative under copyright if she enjoyed sufficient alternative means of communicating the idea underlying her work. Part III of the Article will show how the alternatives-based conception of creativity—while perhaps well-meaning and successful in promoting unrelated policy objectives—is ill-suited to measure the presence of actual creativity. This limited fit is demonstrated, in part, via a Proustian hypothetical that reveals inconsistent results between creativity according to courts and creativity in literary practice. Part III also attempts to prove such inconsistencies by drawing on scholarly legal literature on the topic of creativity. Having completed a deconstruction of the legal notion of “creativity,” part IV of this Article concludes on a more constructive, if not wholly restructuring, note by invoking a separate model of creativity that would seem to improve on the views of courts and computers—a model indirectly proposed by the Nobel laureate Bergson in his work The Creative Evolution, among others. Although the Bergsonian model may not be limited to rigid categorization, it focuses on creativity as a function of indeterminacy in the creative process and its embodied result. It is through just such a model that a more accurate, if more fluid, view of the term “creativity” may be conceived, in both general and copyrightable meanings of the word.
Recommended CitationThomas M. Byron, A la recherche du “sens” perdu: Copyrightable Creativity Deconstructed, 36 Pace L. Rev. 801 (2016)
Available at: https://digitalcommons.pace.edu/plr/vol36/iss3/3