Creativity? YOU CAN’T HANDLE CREATIVITY!

In a study out of Cornell University, The Bias Against Creativity: The Reason People Desire But Reject Creative Ideas, the authors point out that creative responses to problems create uncertainty, and that people reject those creative ideas because they can’t handle the uncertainty:

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

Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

Innovation comes from remixing what we already have.

I’ve written frequently about the myth that creative genius is the product of solitary inspiration and the ways that myth reinforces notions of intellectual property that, under the pretense of rewarding innovation, in fact stifle innovation by preventing the re-use and remixing of existing ideas, creations, and inventions. In reviewing Steven Johnson‘s Where New Ideas Come From, Paul Crowe makes the point that

Greek philosophers said nothing comes from nothing, a new idea, actually a new anything, is simply a rearrangement or unique new combination of things that already exist. When you think of it that way, coming up with new ideas isn’t about having that mysterious “creative” ability, it might be more about a willingness to try lots of new combinations to see what might work, and, hey, anyone can do that, you just need desire and effort.

If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?

It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

If Girl Talk does get sued, I’d love to represent him.

Greg Gillis and I see things very similarly, and I”m a big fan too:

It’s not where you take things from—it’s where you take them to.

From Jim Jarmusch’s Golden Rules, which are about film making but have an awful lot of relevance to the practice of law:

Rule #1: There are no rules. There are as many ways to make a film as there are potential filmmakers. . . . Therefore, disregard the “rules” you are presently reading, and instead consider them to be merely notes to myself. One should make one’s own “notes” because there is no one way to do anything. If anyone tells you there is only one way, their way, get as far away from them as possible, both physically and philosophically.

Rule #2: Don’t let the fuckers get ya. They can either help you, or not help you, but they can’t stop you. . . .

Rule #3: The production is there to serve the film. The film is not there to serve the production. . . .

Rule #4: Filmmaking is a collaborative process. You get the chance to work with others whose minds and ideas may be stronger than your own. . . . [T]reat all collaborators as equals and with respect. A production assistant who is holding back traffic so the crew can get a shot is no less important than the actors in the scene, the director of photography, the production designer or the director. Hierarchy is for those whose egos are inflated or out of control, or for people in the military. Those with whom you choose to collaborate, if you make good choices, can elevate the quality and content of your film to a much higher plane than any one mind could imagine on its own. If you don’t want to work with other people, go paint a painting or write a book. . . .

Rule #5: Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows. Select only things to steal from that speak directly to your soul. If you do this, your work (and theft) will be authentic. Authenticity is invaluable; originality is nonexistent. And don’t bother concealing your thievery—celebrate it if you feel like it. In any case, always remember what Jean-Luc Godard said: “It’s not where you take things from—it’s where you take them to.”

There may after all be useful methods to develop effective analogies to help guide your legal research!

I did at least acknowledge in Friday’s post about the difficulties of research that my words originated at an hour when I felt at “rock bottom.” The essence of my “advice” was not terribly helpful as an educational matter except perhaps in emphasizing to students the enormity of the task and the difficulty of the work they are taking on when they do legal research. I wrote:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are there any methods that are helpful in developing the analogies that are so central to legal argument?

So I did what I should have done in the first place if I were going to speak with any authority on research — I did some research, and, in fact, I found that there may be methods that can help students develop meaningful and useful analogies they can subsequently use to guide their research with increased effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.

One can, of course, make a lists of items and ask students which ones belongs and which one doesn’t. You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing so, the students could recognize that the group of 4 could be classified according to a number of different criteria, and each criterion would exclude a person the other criteria would not. There are 3 women. There are 3 politicians. There are 3 people whose first names begin with the letter O.

This type of exercise does help students recognize that analogies are based on the similarities between different situations, and that of course is a necessary first step in teaching argument based on analogy.

The problem with this type of exercise, however, is that experiments show that it leads subjects to focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies people use to solve real world problems “tend to be based on deep structural features rather than superficial features.” Id. at 4.

Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition.  In one experiment, for example, subjects were presented with the question of whether Canada should run a public deficit or instead balance its national budget. One group was asked to generate analogies that would be helpful to a group arguing for a balanced budget, while the other was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.

The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure analogies from domains not typically associated with the target problem. Thus, instead of focusing on matters typically associated with debates over national budgets — economics, politics, and personal finance (if I can balance my checkbook, why can’t the government?!) — the analogies were  drawn “from domains as varied as natural resources, eating, illness, and domestic tasks.” Id. at 9. Further studies have shown similar results and have suggested that individuals generating analogies alone are more effective than groups at finding deep structural similarities in situations that are not superficially similar. Id. at 13.

So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:

Sit down alone, without resort to any sources other than your own imagination, and try to think of as many situations that are similar to the problem or issue you are addressing in ways that support the position you are taking on the issue. Don’t feel constrained by case law you may have happened to have read or what you feel lawyers are supposed to do. Use your imagination, and draw on whatever  you can. You’ll end up with a number of analogies. Then you can go to secondary sources, identify cases that involve those types of situations, and perhaps in those cases you’ll find arguments and analogies useful in the case you are trying to solve. You might even find very good ones no one has considered before. Lawyers do that all the time.

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

“The secret to creativity is knowing how to hide your sources.” — Albert Einstein

Negativland was way ahead of Girl Talk, and still is.

On September 2, I will have the honor of being part of a seminar, sponsored by the Arts Network of the Council on Smaller Enterprises (COSE), that “will feature a multimedia presentation by independent musician, arts activist and “citizen lobbyist” Mark Hosler from Ashville, North Carolina. Mr. Hosler, well known [as one of the founding members of] the band Negativland for his experiences fighting legal battles over copywright, intellectual property and fair use in art and music, will present a mixed media lecture about his first hand experience with these topics.” Negativland was way ahead of Girl Talk. Holser’s encounters with the inanities of copyright law are legendary and illustrative. Most importantly, Holser is remarkably articulate on these issues. Negativland’s entire site is worth a visit; here is one of Holser’s most recent writings:

From our 28 years of being creators, observers, and consumers of music, art, and video, our group, Negativland, has witnessed incredible and wonderful shifts in the ways that the public is now able to create and distribute new work via digital technologies. We’ve also witnessed amazing changes in the way that money and corporate power has increasingly influenced policy, Congress, and the laws of our nation. At times, these changes are good. At other times, as I am sure you know, they benefit no one except the businesses lobbying you. We are concerned when this does not serve the public interest.

We believe that the healthy evolution of art and creativity has more value than simply counting how much money is lost or made. Art, science and technology have evolved because of how we all build upon the ideas and works of those who came before us. Copyright was always intended as a balancing act between giving ownership to creators so as to provide incentive to create new works, and allowing works to lapse into the public domain so that new ideas could develop. But our founding fathers could never have imagined the kind of world we live in today and the amazing new technologies that we are surrounded with – technologies that encourage and inspire us to interact with the world and create in unprecedented new ways. Protecting the author of a creative work is a good thing, but the benefits of copyright have been thrown off balance by the disproportionate influence of those with the most money. In fact, the more recent expansions of our nations copyright laws represents a break from our nations past and from the intentions of our own Constitution.

Did you know that copyright originally lasted only 14 years, and then all work fell into the public domain? The limit now is 70 years plus the life of the creator, meaning that nothing made in our lifetimes will fall into the public domain. This does not strike us as a very good public good. Even patents, which govern everything from industrial processes to pharmaceuticals, are given only a 20 year period before other manufacturers have access to them and this system seems to have done nothing to discourage innovation, creation, and especially remuneration in the fields of science and technology with this relatively short time span.

But art is neither science nor technology. Why make art out of things originated by others? We think that unless one is lucky enough to live on a remote island somewhere, we all live in a world surrounded by news, music, movies, ads, logos and messages. We are, quite literally, bombarded with media. It has always been a part of human nature to make art in response to and using material from the world around us. Nowadays, anyone with a small computer can easily make, remake, slice, dice, mix, and remix from any electronic media they can get their hands on. And because we can, we often do. Besides being fun, this kind of work creates a new type of cultural “conversation” that we can all have with the media around us, a conversation that we believe is healthy for a vibrant democracy that aspires to true freedom of speech.

Copying has gone on in art and music throughout the ages, from “quoting” in classical music compostions, to homage and parody. In much of the last century, these “appropriation” practices were the province of the avant-garde and the fine art world. But with the Internet, the ever-growing speed of computing, YouTube, MySpace, file-sharing, and other recent developments, they have now moved wholly and firmly into the mainstream. And yet our laws strive to criminalize all of this behavior. Ours is a world in which copyright has fallen woefully behind the curve of what the public actually wants to do with all that digital “stuff” out there. Millions world wide are creating art, music and video that incorporate elements of existing work – cutting and pasting bits and pieces of music, video, text, and pictures made by others to create new works. Millions of web pages now use various Creative Commons licenses to provide a nuanced alternative to traditionally black and white interpretations of copyright laws (one such license Negativland helped to write). The prevalence of these alternative copyright strategies is a testament to how many of your constituents are not at all happy with copyright as it stands now.

At this juncture, we feel it’s necessary to point out that we support artists and creators being paid for the work they produce. We believe copyright was correctly intended as a judicious balance between providing for the creator as well as providing for the public commons, a balance which Negativland believes has been largely forgotten by the big businesses who produce and sell most media and entertainment. And we should also mention that all this creative re-use of material rarely if ever puts new work in economic competition with its sources. It does not pose any reasonable economic threat to the original source in any marketplace that they share. In an ideal world, Negativland would like to see the notion of Fair Use expanded to accommodate, accept, and protect these new practices.

Creative Math from Craig Damrauer

New Math collects Craig Damrauer’s creative equations, many relating quite directly to the issues regarding creativity I address here.

Hat tip to Matt Homan.

Without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling – without influences great and small, in other words – there is no “creating.”

From Jonathan Lethem, “The Ecstasy of Influence: A Plagiarism“:

In a courtroom scene from The Simpsons that has since entered into the television canon, an argument over the ownership of the animated characters Itchy and Scratchy rapidly escalates into an existential debate on the very nature of cartoons. “Animation is built on plagiarism!” declares the show’s hot-tempered cartoon-producer-within-a-cartoon, Roger Meyers Jr. “You take away our right to steal ideas, where are they going to come from?” If nostalgic cartoonists had never borrowed from Fritz the Cat, there would be no Ren & Stimpy Show; without the Rankin/Bass and Charlie Brown Christmas specials, there would be no South Park; and without The Flintstones-more or less The Honeymooners in cartoon loincloths-The Simpsons would cease to exist. If those don’t strike you as essential losses, then consider the remarkable series of “plagiarisms” that links Ovid’s “Pyramus and Thisbe” with Shakespeare’s Romeo and Juliet and Leonard Bernstein’s West Side Story, or Shakespeare’s description of Cleopatra, copied nearly verbatim from Plutarch’s life of Mark Antony and also later nicked by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more plagiarism.

From Open Source:

Nearly every word of [Lethem's] essay about cultural borrowing and reworking was stolen – er, appropriated – from some other source and then cobbled together with a big dose of Lethem magic to form a cohesive whole. Even the “I”s aren’t Jonathan Lethem; they’re Jonathan Rosen writing in The Talmud and the Internet about John Donne, or William Gibson in a Wired article about William Burroughs, or David Foster Wallace on a grad school seminar, or Brian Wilson in a Beach Boys song.

But this is more than a stunt. It’s a passionate salvo in the copyright wars, a crowd of voices coralled together to say, basically: without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling – without influences great and small, in other words – there is no “creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

So how to think about the joys, perils, and contradictions of influence in our intellectual property age? Lethem wonders himself:

“The dream of a perfect systematic remuneration is nonsense. I pay rent with the price my words bring when published in glossy magazines and at the same moment offer them for almost nothing to impoverished literary quarterlies, or speak them for free into the air in a radio interview. So what are they worth? What would they be worth if some future Dylan worked them into a song? Should I care to make such a thing impossible?”

Here is a podcast (mp3) of a discussion between novelistJonathan Lethem, author Siva Vaidhyanathan, and musicians Mark Hosler (of Negativland) and Mike Doughty (of Soul Coughing) about the politics of plagiarism and originality.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”

There is nothing new under the sun?

What is creativity? What is originality?

Is republication of Mark Cuban’s tweet on Twitter non-infringing? Almost certainly it is.

Mark Cuban asks:

Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Well, sure, a “tweet” might be protected by copyright. The more creative it is, the more powerful is the protection. Cuban wouldn’t be wondering whether a 140 character poem by William Carlos Williams could be protected by copyright.

The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would require consideration of the specific message Cuban is talking about and application of the specific facts in dispute under the appicable analysis:

(1) What is the nature and character of the allegedly infringing use? The more creative it is in its own right or the more it is an instance of the type of expression protected by the First Amendment (journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in legitimate journalism . . . , but

(2) What is the nature of the copyrighted work? The more creative or journalistic or political the expression, the less likely use of it without permission will be fair use. And the fact the work is available anyway would cut in favor of ESPN’s use of it being a fair use. This factor is almost impossible to determine based on Cuban’s hypothetical question. There can be 140 words that are as creative and expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter to everyone that follows him indicates that he doesn’t have that strong an interest in controlling the use of the words.

(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I suppose this factor cuts against ESPN’s claim of fair use, but, of course, the brevity of the entirety (under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably very different than 140 characters written by Mark Cuban in a tweet, but they might not be.

(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a market for Mark Cuban’s tweets? It’s hard to believe there might be.

In short, I’d advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets. If he really thinks he’s got something so worthwhile he should have the exclusive right to its commercial value, he shouldn’t have put it out on Twitter in the first place.

Are lawyers and artists completely different and atagonistic?

Wendy Duong of the University of Denver Sturm School has written an article entitled “Law Law is Law and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.”

It’s a fascinating article and well worth dowloading and reading, but here I’d like to take issue with one of her principle points.  As she puts it in the abstract to her article:

The two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d’etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order — will interfere with, and can even destroy, the creation of art.

I will confess that I would not generally consider the product of legal practice “art” and it would be a stretch to fit even certain extraordinary legal products art –  Perhaps the Declaration of Independence? The Constitution? Certain influential legal opinions?)

But does law “render certainty to uncertain future outcomes”?  I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong attributes to art.

Life is infinite.  Each case courts decide are intended first, of course, to resolve the specific cases they are resolving.  But to the extent they render opinions, they are only contingently trying to address the future, and they know those contingent efforts are subject to irrelevance under new circumstances.

Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always striving to govern.  In doing so, it is constantly striving to envision the future material conditions the law might apply to and to anticipate those conditions in making law.  Lawmakers then do not decide with a certainty what law they want to impose from above on the future; they collaboratively work out the best approach to whatever they can envision, knowing all the while that the law may well have to change in the future.

The practice of law too is the constant telling of stories — stories to persuade, stories to inspire, stories to justify visions of the future.  In doing so they are as constrained as artists in the “realities” available to them.  Lawyers are artists.  They may have to make decisions, but that doesn’t mean that in getting to those decision-making points they are not as creatively engaged as artists.

Finally, if lawyers aren’t engaging in the same mental facilities as artists, I don’t have a clue what mental processes artist and lawyers engage in.  I suspect if those ways of thinking are entirely divorced from one another, the lawyers aren’t practicing law well and the artists are not producing good art.

And if artists’ visions are irrelevant entirely from decisions people make in life (You must change your life.), what is it?

The most innovative lawyers in the U.K.

From London’s Financial Times comes this year’s list of the ten most innovative U.K. lawyers. “[T]he submissions showed that it is possible to overturn conventional notions of the role of the lawyer. The bold individuals who dreamt up a new scheme, persuaded colleagues of its importance, set it in motion and made a success of it can take ample credit in their achievement.”

Nevertheless, the judges who made the choices “were dismayed to find no women lawyers or members of ethnic minorities. This follows a report last month from The Lawyer magazine that women account for just 14 per cent of partners at the UK’s four leading or ‘magic circle’ firms. One judge commented that law firms claiming the mantle of innovation must surely show a greater commitment to diversity.”

Perhaps that’s why Marc Harding, General Counsel of Barclays, was selected for

leading the charge for the profession to step up to the challenge of diversity, helping the Law Society complete its first draft of a diversity charter. Mr Harding first demanded that his legal suppliers give Barclays diversity statistics in 2006. Not only must the seven key advisers to the bank deliver these statistics, he also demands them from the bank’s 10 specialist legal panels. The legal press have commented that his work in moving diversity up the agenda will have a lasting impact on the client-lawyer relationship.

Another interesting choice was David Gray, Chief Executive of Eversheds:

To demonstrate the importance of openness and accountability, Mr Gray created a mechanism to receive feedback from the firm’s partners. In a courageous move, he kicked off the process at a conference in 2006, where he stood in front of Eversheds partners and invited them to score him on his performance during his live presentation. The partners anonymously scored Mr Gray from 1 to 5 on specific questions via electronic keypads, with the results screened instantly for all to see. Mr Gray says it was “pretty terrifying”, but “I did it because I wanted to bring home to them that accountability had to start at the top”.

Mr Gray invites feedback via an intranet page, asking partners to rate him on communication, strategic decision making, motivational skills and general leadership.

Lessig on Copyright Law: 5 ways to improve it.

Starting his article with an account of the silliness Universal Music Group visited upon Stephanie Lenz, Lawrence Lessig makes a compelling case that the existing regime of copyright laws subverts its very purposes — motivating creativity. Accordingly, Lessig proposes the following revisions to our laws:

1. “Where the creativity is an amateur remix, the law should leave it alone. It should deregulate amateur remix.”

2. “Deregulate ‘the copy:’ Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a “copy,” that makes as much sense as regulating breathing. The law should also give up its obsession with “the copy,” and focus instead on uses — like public distributions of copyrighted work — that connect directly to the economic incentive copyright law was intended to foster.”

3. “Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now.”

4. Restore efficiency: “[W]e should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term.”

5. “Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop ‘sharing.’”

Look for new combinations of old things

Lists of instructions for boosting creativity often suggest combining things you have not thought might be related. Obviously, this advice has application in art. It also, just as obviously, has application in law. As Shaun Tan, an accomplished Australian author and illustrator puts it:

Paul Klee once described an artist as being like a tree, drawing the minerals of experience from its roots – things known, observed, read, intuited and felt – and slowly processing them into new leaves. Similarly, the science writer Stephen Jay Gould notes that the greatest discoveries are to be found not in a freshly hewn cliff of shale, but in old museum collections, by rethinking the relationships between the objects that have already know about.

Four weeks into my Contracts class with a group of new law students, they still goggle when I point out that the “rules” they learned the first week can be used to explain the results the fourth week. The students think the fourth week’s materials have to be explained by the fourth week’s “rules.” They can be, but in law any good explanation for a given result is an acceptable one. The more good explanations you have, the more likely you are to the court you should win.

In Neil Duxbury‘s “Truth and Rhetoric,”(pdf) Ratio Juris. Vol. 12 No. 1 March 1999 (116–121), the author quotes from Dennis Patterson‘s book Law and Truth:

In choosing between different interpretations, we favor those that clash least with everything else we take to be true. In law, as in all matters, “[w]e convince someone of something by appealing to beliefs he already holds and by combining these to induce further beliefs in him, step by step, until the belief we wanted finally to inculcate in him is inculcated.” In law, we choose the proposition that best hangs together with everything else we take to be true. (Law and Truth, 172, citation omitted)

Of course, the ability to combine ideas in new ways requires having as large a storehouse of ideas as possible.

This morning I didn’t think about the fact I wasn’t being original.

I didn’t realize when I wrote this morning’s post that Ann Bartow at Sivacracy.net had over a month ago quoted musician Jeffrey Lewis’s piece in the New York Times making essentially the same points: