Although the positive associations with creativity are typically the focus of attention both among scholars and practitioners, the negative associations may also be activated when people evaluate a creative idea. For example, research on associative thinking suggests that strong uncertainty feelings may make the negative attributes of creativity, particularly those related to uncertainty, more salient

The authors conclude:

Our results show that regardless of how open minded people are, when they feel motivated to reduce uncertainty either because they have an immediate goal of reducing uncertainty, or feel uncertain generally, this may bring negative associations with creativity to mind which result in lower evaluations of a creative idea.

I’ve always told students and colleagues that being genuinely creative requires courage and the ability to persevere in the face of rejection. There’s good reason for that. As much as “innovation” is the catchword of our age, very few people in decision-making positions are really brave enough to accept innovative ideas (whether they’re teachers, school administrators, politicians, lawyers, or corporate executives).

hat tip to Farnam Street

You can see my presentation here. But the presentation, obviously, is only the starting point of a talk, so I thought I’d take this opportunity to “annotate” the presentation, providing some commentary and a lot of links to provide most of the content of the talk here and to supplement it for those who were there.

This post constitutes the first part of these annotations. I will continue this supplement to the presentation in the near future.

The first “slide” (I used Prezi, not PowerPoint, for the first time in this talk) is a video by Kutiman, a musician, composer, producer and animator from Israel. He is best known for creating an online video music project entitled ThruYOU consisting of individual videos mixed entirely from samples of YouTube videos.

The second slide is the title slide: What does an artist need to know about copyright law? Although I spoke a lot about appropriation art and copyright law, I emphasized my sincere belief that to negotiate the difficulties posed by copyright law in an era of novel and breathtaking technologies requires the gifts of an artist. I used Warhol’s Campbell’s Soup Can and Shepard Fairey’s Obama Hope poster as 2 examples of what I was talking about in part because they encountered such different responses from the corporation from whom the artist appropriated his image. Warhol received an amusing and appreciative letter from Campbell’s Soup. Fairey was sued by the Associated Press, a lawsuit that was eventually settled and thus left unresolved the underlying legal questions.

The next 2 slides ask, “What is an artist?” and give one answer, provided by performance artist Guillermo Gómez Peña:

[T]he artist doesn’t really give answers. That is the role of the theorist, the scientist, the political activist, and the religious leader. The role of the artist is to ask impertinent and complex questions, irritating questions, and also to make the audience aware of the process of inquiry, and that’s where the pedagogical dimension lies—when the performance becomes the search, and when the process of search becomes the performance; and people see you struggling with meaning, with your own philosophical despair, with your political demons, and your own aesthetics.

Not only does this confrontation with questions that confront all of us strike me as central to the role of the artist; it also strikes me as central to the role of the lawyer. Moreover, one of the most difficult stumbling blocks in teaching law students is getting them over the belief that they will learn answers to the questions they will confront in their careers rather than the skill to identify the right questions and to best move forward in light of those questions.

Thus, the next 2 slides ask, “What is a lawyer?” and provide a quote from from Edward Levi, a legal scholar studied by first year law students when I went to law school but now largely neglected, to the effect that legal “rules” are not the sort of rules people typically expect:

[T]he rules change from case to case and are remade with each case. Yet this change in the rules is the indispensable dynamic quality of law. It occurs because the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.

Lawyers then, like artists, must always be attentive to the similarities and differences that abound in the infinite complexity of human life. If you present me with a legal problem and an answer and then change one fact about the problem, the entire answer may change. Or may not. It depends. So if you’re looking for answers, you’ve come to the wrong place. Another situation is always different. But I can certainly let you in on what I deem important and why.

For the basic rules on copyright and fair use, the U.S. Copyright Office is a terrific starting point on all things copyright. If you are interested in knowing the basics about what you have to do to register a copyright and other nuts and bolts matters, go there.  Stanford’s Copyright and Fair Use Center is also a great resource on all of the questions addressed in my talk. I like the Copyright Website too.

In order to be protected by copyright, a work must be, among other things, “original.” The quintessential illustration of this requirement — which emphasizes that the mere “sweat of the brow” invested by the work’s creator is not sufficient to earn the work copyright protection — is Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), in which the U.S. Supreme Court ruled that the substantial work of compiling and organizing the information required to put together a rural telephone directory did not entitle the directory to copyright protection. The information itself, though the result of the plaintiff’s hard work, constituted “mere facts,” and there was nothing original about the alphabetical arrangement. Thus, the defendant could not be stopped from copying the plaintiff’s directory and selling it as his own.

A more recent example of this principle with some bearing on appropriation art is the case of Meshwerks v. Toyota Motor Sales, Inc. (10th Cir. 2008), in wich the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.

The digital model, while the product of skill, resulted merely in the reproduction of a car. The image itself is nothing more than an image of a fact. While the court noted the obvious difficulties of applying existing law to new technologies, it compared the digital images of cars created by Meshwerks to photographs. Since the invention of photography in the 19th Century — when it was believed by some that photography as a mere transmission of “reality” did not constitute art — courts have concluded that photographs are entitled to copyright protection but only to the extent the photograph consists of elements resulting from the photographer’s choices. Thus, a photograph “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.”

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).

The digital image of the car that could be inserted and manipulated within a digital image was, in contrast, merely a reproduction of a car. It would only be when an art director placed it within an image that choices regarding lighting, angle, and other elements would be chosen. In contrast, in Time, Inc. v. Bernard Geis Associates,  the court held that the famous “Zapruder film” was entitled to copyright protection. Abraham Zapruder, a Dallas dress manufacturer, had been taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. The court observed that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.” The fact that the moment he filmed happened to be historic did not change that fact. And, if you’re interested, here’s another interesting photography case.

The fact that Congress has the power to pass laws protecting copyright is a result of the Constitution’s Copyright Clause. There are at least 2 important reasons the constitutional dimension of this power is important. First, the Copyright Clause expressly states that Congress has the power for the purpose of promoting innovation. Thus, to the extent copyright law inhibits innovation rather than promotion it, that law very may well be unconstitutional. In addition, copyright limits the ways people can express themselves and thus is a limitation on the freedom of expression protected by the First Amendment. Obviously, that freedom of expression is of supreme importance in our country. Thus, the conflict between the two constitutional rights — the right to protection of one’s creative product and the right of one to express oneself (even by means of another’s creative product) must be balanced. That balance is what results in the doctrine of fair use.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

And taxes on wealth passed to those who didn’t earn the wealth are described as “death taxes.”

As I wrote above, however, lawyers are well-attuned to these tricks. Sometimes, therefore we underestimate their impacts. We see through the metaphorical frames our adversaries use.

But Psychology Today describes a study  vividly demonstrating the impact metaphors have on judgment by documenting the radically different proposed solutions college students proposed for urban crime depending on whether the crime was described as a “wild beast preying on” and “lurking” in the city or, instead, a “virus plaguing” the city:

Researchers Paul Thibodeau and Lera Boroditsky from Stanford University demonstrated how influential metaphors can be through a series of five experiments designed to tease apart the “why” and “when” of a metaphor’s power. First, the researchers asked 482 students to read one of two reports about crime in the City of Addison. Later, they had to suggest solutions for the problem. In the first report, crime was described as a “wild beast preying on the city” and “lurking in neighborhoods”.

After reading these words, 75% of the students put forward solutions that involved enforcement or punishment, such as building more jails or even calling in the military for help. Only 25% suggested social reforms such as fixing the economy, improving education or providing better health care. The second report was exactly the same, except it described crime as a “virus infecting the city” and “plaguing” communities. After reading this version, only 56% opted for great law enforcement, while 44% suggested social reforms.

Interestingly, very few of the participants realized how affected they were by the differing crime metaphors. When Thibodeau and Boroditsky asked the participants to identify which parts of the text had most influenced their decisions, the vast majority pointed to the crime statistics, not the language. Only 3% identified the metaphors as culprits. The researchers confirmed their results with more experiments that used the same reports without the vivid words. Even though they described crime as a beast or virus only once, they found the same trend as before.

In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.

Darnton concludes that the U.S. “should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.” And he therefore sees the legal issues — particularly dealing with “orphan works” – as the principal barrier to a U.S. National Digital Library.

Unfortunately, I disagree with Darnton regarding the main impediment. As I’ve explained “orphan works” are “works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.” I’m not sure I see any particular problem with Congress enacting legislation amending the Copyright Act to authorize a National Public Library to use works whose copyright owners cannot be identified under terms that provide for reasonable compensation when and if owners make and establish their claims.

I think, however, the cost is a real impediment in the current economic climate. €750 million is almost $1 billion. While the U.S. military budget for 2010 totals approximately 685 times this amount, the current political climate hardly seems ripe for Congress to take the initiative on a project that would strike much of the citizenry — and certainly most U.S. politicians — as intellectual frivolity. It isn’t, of course, but one can be sure that massive confusion over the rights of authors (as I’ve touched on here, among other places) could be used to demagogue to death a billion dollar project longed for by a bunch of professors.