Peter Friedman
Associate Professor, Legal Analysis & Writing
Case Western Reserve University School of Law

Ruling Imagination: Law and Creativity

August 14th, 2008 | Uncategorized | 2 comments

Ruling Imagination: Law and Creativity/Is creativity individual or collective?

Do you view the creative act as an individual or collective one?

As I began to explain on Monday, law is a quintessentially collaborative enterprise. Even when we glorify or vilify individual judges, we consider them part of a justice (or “justice”) system. It’s no secret among lawyers that the listing of authors on a legal document top to bottom reflects 2 things: the lawyers at the top are the more important ones, and the lawyers at the bottom did most of the legal research, analysis, and writing. It’s also a point of pride for a lawyer when a judge’s opinion constitutes little more than a cut-and-paste job of the lawyer’s own brief (without attribution, of course).

Apparently, as Coturnix at ScienceBlog.com puts it, the “death” of the single author is also a trait of scientific writing:

The question of authorship on scientific papers is an important question. For centuries, every paper was a single-author paper. Moreover, each was thousands of pages long and leather-bound. But now, when science has become such a collaborative enterprise and single-author papers are becoming a rarity, when a 12-author paper turns no heads and 100-author papers are showing up more and more, it has become necessary to put some order in the question of authorship.

The artists among you might consider these questions limited to the professional or practical spheres. And you might wonder too what they have to do with a blog concerning law and creativity.

Well, in the words of the CWRU English Department’s Authorship Collective, changing historical notions of creativity –- specifically, the change of an understanding of creativity as a collaborative, group effort to creativity as the product of a single inspired mind –- are precisely the notions that created modern intellectual property rights and the ways those rights protect “individual” creations without protecting collaborative or communal creations:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

The Authorship Collective explains that for the better part of human history the ways new works drew on known, existing works contributed to the value of the new work. “Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics — the collective wisdom of their craft.”
[In contrast, the] individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author‘”.
What does this shift in the notion of authorship have to do with the law? Well, quite a bit, but, for now, let’s note that Wordsworth, the seminal figure in the notion of the author as solitary genius, was one of the chief lobbyists on behalf of the Statute of Anne, the first British copyright law with any real force. In short, the central figure in creating the notion of artistic creation as the product of solitary inspiration was a central figure in laying claim to exclusive ownership of the products of that solitary inspiration.
And for all that, his sister and Coleridge were both major contributors to his art. Who’d've thunk?
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