The Freedom to Copy: Copyright, Creation and Context

Olufunmilayo B. Arewa, Northwestern University School of Law

Abstract

Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine.

After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in copyright is frequently characterized as not involving copying, which is typically thought to be antithetical to both originality and creativity. This stigmatization of copying, however, means that copyright theory cannot adequately account for the reality of not infrequent similarities between works that are a result of copying both ideas and expression in the creation of new works. This missing theoretical link has significant implications for copyright in practice. The lack of legal analysis of the full range of creativity and processes of creation is also a major reason why copyright theory often has such difficulty delineating what constitutes appropriate and inappropriate copying of existing works.

In contrast to law, analyses in the cultural studies arena have examined the ways in which new works are created, devoting attention to the ways in which new works may derive from existing expression. Examination of theories of creation in such disciplines can lend insight into ways in which copyright theory can better conceptualize both copying and creation within copyright frameworks. Through the incorporation of more fully conceived notions about copying, copyright theory can better recognize both the fundamental importance of the freedom to copy as well as its limitations. Focusing on literary criticism and musicology, where processes of creativity are often central, this Article offers a more useful theoretical framework. It proposes broad recognition of a freedom to copy as an integral part of the creative process.