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The Soul of Creativity: Forging a Moral Rights Law for the United States

The Soul of Creativity: Forging a Moral Rights Law for the United States

by Roberta Kwall

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In the United States, human creativity is historically understood to be motivated by economic concerns. However, this perspective fails to account for the reality that human creativity is also often the result of internal motivations having nothing to do with money. This book addresses what motivates human creativity and how the law governing authors' rights should


In the United States, human creativity is historically understood to be motivated by economic concerns. However, this perspective fails to account for the reality that human creativity is also often the result of internal motivations having nothing to do with money. This book addresses what motivates human creativity and how the law governing authors' rights should be shaped in response to these motivations.

On a practical level, it illustrates how integrating a fuller appreciation of the inspirational dimension of the creative process will allow us to think more expansively about legal protections for authors. Many types of creators currently lack the legal ability to compel attribution for their work, to prevent misattribution, and to safeguard their work from unwanted modifications. Drawing from a number of diverse sources, including literary, philosophical, and religious works, this book offers real solutions for crafting legal measures that facilitate an author's ability to safeguard his or her work without entirely sacrificing the intellectual property policies in practice in the United States today.

Editorial Reviews

From the Publisher
"American copyright law attempts to strike a balance between protecting author's rights and preserving the public domain. In an insightful new book, Professor Roberta Rosenthal Kwall offers a new perspective to this ongoing conversation . . . This engaging book will undoubtedly encourage people to reconceptualize author's rights in a more holistic fashion."—Harvard Law Review

"Professor Roberta Kwall's book brings together a wealth of academic literature and case law analysis to make the argument for a more fully developed and rounded moral rights regime in the United States."—Shubha Ghosh, IP Law Book Review

"The Soul of Creativity would be a welcome addition to any intellectual property firm's library. [Also recommended] for all academic law libraries, as their faculty and students will find it a unique and valuable addition to the more standard copyright fare."—Alicia Brillon, Law Library Journal

"Far beyond a purely legal study, Roberta Rosenthal Kwall, in a truly interdisciplinary fashion, analyzes philosophical, psychological, cultural and, yes, theological reasons why authors, even in our postmodern world, merit protection of their moral or spiritual interests."—Adolf Dietz, International Review of Intellectual Property and Copyright Law

"Roberta Kwall is one of our country's leading advocates for bringing Continental European moral rights—the legal protection of authors' expressive autonomy and personal connectedness with their creative work—into US copyright law, a regime steeped in a utilitarian understanding that too readily overlooks the noneconomic aspects of creation and expression. In this lucid and eloquently argued book, Kwall presents a clarion call for recognizing moral rights and a nuanced, concrete blueprint for how they might be adopted in the United States in a manner consonant with our copyright and free speech traditions." — Neil Netanel, UCLA School of Law
"Roberta Kwall's new book on moral rights is a definitive treatment of the subject as well as a splendid addition to the literature on intellectual property. Kwall brings to her undertaking an impressive mastery of the complex tensions that can arise when a work of art lodges in the hearts and minds of the public. How much public recognition is an artist entitled to expect? And what is to be done when public appropriation and the passage of time result in threats to debase, degrade or even to destroy the original work or the reputation of its creator? Whether in the United States or abroad, answers to questions like these can often seem murky and uncertain. Kwall's responses, which are addressed primarily to changes she sees as necessary in American law, are nevertheless also carefully considered against a background of international conventions. She advances her proposals gently, respectfully, fairly, and powerfully. The result is a creative work in its own right, and one that (like its author) deserves the fullest recognition." —David Lange, Duke University School of Law
"Professor Kwall's book is a breakthrough in the theory of intellectual property. In a clear yet sophisticated manner, she shapes a new theoretical foundation for an understanding of the subject—one grounded in the concept of "moral rights." She draws from precepts of moral and political philosophy to develop a model built on a normative commitment to the principles of individual worth, dignity and creativity. It provides a welcome alternative to more traditional economic models. Her theory makes valuable contributions to the most important and controversial doctrinal and practical debates in the area. Even scholars who adopt a different perspective will need to deal with Professor Kwall's work." —Martin Redish, Northwestern University Law School
"Kwall presents new insights into the nature of the creative process in arguing for the expansion of the very limited moral right recognized by U.S. law. This important book highlights the difficulty in reconciling the property-based American copyright law with personality-based issues of authorship underlying the moral rights construct, and provides a foundation for creating a meaningful American version of moral rights."—Sheldon W. Halpern, Harold R. Tyler Jr. Chair in Law & Technology, Albany Law School
"Professor Kwall makes a refreshing and persuasive argument for clearer legal rights of recognition for authors, and she reaches far beyond studies that justify conventional moral rights. Kwall gracefully unites perspectives from literature, art, philosophy, and religion to reveal surprising deficiencies in the law and the complications of finding solutions." —Kenneth D. Crews, Columbia University

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Stanford University Press
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5.90(w) x 8.90(h) x 0.80(d)

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By Roberta Rosenthal Kwall

Stanford University Press

Copyright © 2010 Board of Trustees of the Leland Stanford Junior
All right reserved.

ISBN: 978-0-8047-6367-7

Chapter One

Authorship and Textual Integrity

A skeptic might assert that it is wrong for people to identify with the intellectual products of their capacities and therefore, would question whether individuals should have any particular entitlements to such products. Justin Hughes fittingly captured this view with the following observation: "To transpose Robert Nozick's classic query, why should we think putting our personality out into the world gives us rights to the things we create? Why should we not assume that when we mix our personality with the world, we lose part of our personality instead of gaining part of the world?" Postmodernist skeptics advance the related argument that no single work manifests creativity and innovation deriving from a unitary source. Drawing on this view, legal scholars have criticized copyright law as a whole for its implicit reliance on the Romantic view of authorship. If true artistic creativity is, in essence, a fiction, then no reason exists for privileging authors above other producers when it comes to issues of textual integrity.

Moreover, literary theorists document that the concept of "authorship," as we understand that term today, is a relatively recent phenomenon that began to take shape in the eighteenth century. English professor Martha Woodmansee reminds us that how we see the concept of "authorship" today was not inevitable given that the heritage of the Renaissance was to view authors as either "craftsmen" who mastered what was put before them for the enjoyment of the "cultivated audience of the court," or alternatively as "inspired" by external forces. The idea that an author is personally responsible for her work may be inconsistent with the first, and perhaps even to some degree with the second, of these conceptions. According to Woodmansee, the notion of personal responsibility emerged later, in part as a result of the influence by a class of professional writers in the eighteenth century who sought to justify legal protection for their efforts.

To some there is appeal in the view that once we create we should lose that which we have infused in our work. I suggest, however, that the rationale underlying this position contradicts the norms of artistic protection. Although authors freely borrow from the landscape of existing cultural production, a work of creative authorship nonetheless manifests the author's individual process of creativity and artistic autonomy. The postmodern critique ignores the reality that when an author borrows from the cultural fabric in crafting her work, it is still the unique combination of past efforts and the author's original contributions that invests the author's work with its autonomous unique and inviolate stamp. As Fred Yen has observed: "Authorship is therefore not the creation of works which spring like Athena from the head of Zeus, but the conscious and unconscious intake, digestion, and transformation of input gained from the author's experience within a broader society." Perhaps the authorship construct in which we indulge today was "neither natural nor inevitable," but it is without doubt the one that has prevailed and thus, cannot be completely eliminated from the discourse. Further, by questioning the ability of authors to draw upon personal originality as their creative inspiration, notwithstanding liberal borrowing from the existing artistic landscape, the postmodern scholars arguably do not sufficiently account for the inspirational dimension of authorship. Indeed, the very act of authorship entails an infusion of the creator's mind, heart, and soul into her work. Many authors of creative works maintain a certain type of relationship with their artistic "children." This relationship is unique among other types of human production given the highly personalized and intrinsic nature of creative authorship.

Although a creator's audience may indeed find meaning in a creator's work that is distinct from the author's, the focus here is on a "meaning" and "message" personal to the creator. Courts use the words meaning and message together, but typically they do not define or distinguish these terms. The concepts of a work's "meaning" and "message" as used in this book are related in that they are dependent upon the creator's subjective vision rather than the vision of the creator's audience, but these terms nonetheless embrace somewhat distinct ideas. The creator's meaning personifies what the work stands for on a level personal to the author, whereas the creator's message represents what the author is intending to communicate externally on a more universal level. A work's "meaning" therefore exemplifies the idea of "why I as the creator got involved in doing this work and what I see in it." In contrast, a work's "message" embodies the notion of "what I as creator expect others to see in it, and what I hope they'll take from it."

Let's unbundle these concepts with an example. In my office hangs an exquisite colorful print called Bereshit Micrography by Leon Azoulay. The print contains the complete book of Genesis executed in Hebrew microcalligraphy and depicts the Creation, Noah's ark and a rainbow, and other images from the book of Genesis. Although I cannot say with certainty what the meaning of this work is for the author, one could posit that he created this edition of 350 prints as a testament to the mysteries of Divine creation. Azoulay was raised in the ancient town of Tsfat, Israel, the birthplace of Jewish mysticism known as Kabbalah. His biography indicates that this environment inspired him to search for a means of expressing his passion for both painting and the Bible. Azoulay's personal meaning essentially can be viewed as including what ever qualities he believes the work intrinsically embodies. The message of the print, on the other hand, is the narrative the author seeks to communicate to his audience. The author's message likely will include his own personal meaning but it might also extend beyond it. For example, hypothetically speaking, Azoulay's microcalligraphy of Genesis may be intended to communicate that unless man controls his evil tendencies, suffering will occur as it did in the Garden of Eden.

When a work of authorship manifests a meaning and message specific to the author, attribution and integrity protections together safeguard the author's original conceptions. Charles Beitz, a professor of politics at Prince ton University, has observed that even if a particular creator's work lacks a clear "propositional content" in that the creator is simply attempting to "produce an interesting object for interpretation," the argument for moral rights protection remains strong because "the creator might reasonably believe that preservation of the work in its original form is necessary for the success of the aim." Moreover, preservation of the author's meaning and message during the lifetime of the author facilitates the development of authorship dignity. It is human nature to care about how one's product is packaged for external consumption. And when the packaging violates the original author's vision of the work's meaning and message, there is an assault to the author's dignity. This assault, though arguably justifiable in light of other people's enjoyment of free speech and artistic freedom, nonetheless violates a well- established code of authorship morality. There is, quite simply, something wrong with damaging a work's textual integrity. Authorship morality depends upon the observance of certain foundational norms regarding authorship. The difficulty facing the United States, however, is how to craft legal protection for these authorship norms that are compatible with our current understanding of both copyright and free speech.

A legal system committed to authorship morality should be concerned with recognizing authors' dignity interests. Edward Bloustein emphasized the importance of dignity recognition in his classic explanation of the inviolate personality as "the individual's in dependence, dignity and integrity," which "defines man's essence as a unique and self-determining being." Linking this description of the inviolate personality to the subject of authors' rights, he continued: "It is because our Western ethico-religious tradition posits such dignity and in dependence of will in the individual that the common law secures to man 'literary and artistic property'-the right to determine 'to what extent his thoughts, sentiments, emotions shall be communicated to others.'" Bloustein's observations underscore the link between dignity as a construct and its embodiment in externalities that command respect and attention. Thus, as a behavioral category, dignity can find realization only in its external embodiments that allow the inner personality to commodify itself. Commodification of the products of authorship allows an author's inner personality to explain and interpret itself to the outside world. If a person succeeds in communicating her message, she can claim dignity. In the words of theologian Rabbi Joseph Soloveitchik, "the silent person, whose message remains hidden and suppressed in the in- depth personality, cannot be considered dignified." As these philosophical observations suggest, authorship dignity cannot be assessed absent the author's externalized message, and this message, in turn, reflects the inner dimensions of the author's creative process. Thus, appropriate regard for a work's meaning and for the external embodiment of an author's work as the means through which her message is communicated to the public facilitates the acquisition of authorship dignity. Moreover, a legal system concerned with safeguarding authorship dignity is designed to ensure that the author's choice of signature and presentation will be respected to the fullest extent possible. These are the vital elements of the work's meaning and the author's intended message to the world.

In addition, there are practical benefits to designing a legal system of authors' rights that promote authorship morality. Laws governing authors' rights can be ignored if they fail to embrace widely shared norms regarding authorship. Psychology professor Tom Tyler has demonstrated that the most important factor in shaping compliance with the law is public perception of right and wrong. Tyler observes that "the law can have an important symbolic function if it accords with public views about what is fair, but it loses that power as the formal law diverges from public morality." In other words, people are more likely to obey laws that reflect public morality.

Tyler also proposes legitimacy as a factor fostering voluntary compliance. In the context of legislative mandates, legitimacy derives from public perception regarding the fairness of the decision- making process. Simply put, "[p]eople are more likely to regard as fair, and to accept, decisions in which they participated." Broad- based participation is the key to ensuring that the decision-making process is perceived as fair, which in turn promotes compliance. In the context of intellectual property laws specifically, Tyler urges broader citizen participation so that people come to "believe that the rules established serve reasonable social purposes and are not simply efforts to create profits for special interest groups, such as large corporations."

In other countries, the intrinsic dimension of the creative process is recognized in dependently of the external commodity through moral rights laws that protect the personal, as opposed to the economic, rights of authors. The most prominent components of moral rights laws are the right of attribution and the right of integrity. The right of attribution safeguards the author's right to be recognized as the creator of her work. The right of integrity guarantees that the author's work truly represents her creative personality, and is free of distortions that misrepresent her creative expression. Central to moral rights is the idea of respect for the author's meaning and message as embodied in a tangible commodity because these elements reflect the intrinsic creative process. On a theoretical level, moral rights focus on inspirational motivations and the intrinsic dimension of creativity; attribution and integrity rights are protected because they are regarded as integral components of a work's meaning and message as conceived by the original author. In other words, both the right of attribution and the right of integrity function to safeguard the author's meaning and message, and thus are designed to increase an author's ability to safeguard the integrity of her texts.

Attribution is a vital, and perhaps the most widely endorsed, component of authorship dignity. A focus on the intrinsic dimension of human creativity sees the author's choice of attribution as very much part of her meaning and message and as such, it plays a central role in communicating the essence of an author's work to her audience. As Chapter 7 explores more fully, even anonymous or pseudonymous works can be seen as reflecting a branding choice that is a fundamental part of the author's meaning and message. When the author's attribution of choice is omitted without permission of the author, the original work is somehow incomplete. Consider, for example, Stanford Law School's Creative Commons Project, which offers participating authors easy, predefined terms for licensing free use and even modifications of their work. In electing the terms in which to participate, virtually all authors require attribution of their work. In fact, because of this overwhelming preference on the part of authors, Creative Commons changed its default license option to include attribution. Attribution thus functions as a significant, and widely acknowledged, means of safeguarding the overall integrity of an author's text. In discussing the right of attribution, Susan Liemer has observed that the "goal is to protect the personal association between the artist and her art" because even if two works look similar, they arise out of distinct minds, bodies, creative efforts, and processes.

The moral right of integrity also represents a foundational authorship value. Objectionable distortions, modifications, presentations, and even destruction of an author's work damage authorship dignity because the author's external embodiment of her meaning and message no longer represents her intrinsic creative process. The resulting damage is particularly acute when the modified work is linked to the author through specific attribution or widespread public recognition.

The following examples illustrate some of the difficulties authors face in safeguarding the integrity of their texts. A clear attribution violation was the impetus for the lawsuit in Batiste v. Island Records, Inc. According to the facts of this case, a song written, performed, and recorded by the plaintiffs, the Batiste brothers, was digitally sampled by the defendant Cordes, and included in one of Cordes's musical compositions released by the defendant record company. Before the release of Cordes's composition, the record company secured the permission to use the plaintiffs' song from Bolden, a local music publisher and record producer to whom one of the plaintiffs had assigned the copyright in the plaintiffs' song. The record company also paid Bolden a $15,000 advance against the record royalties. 27 The liner notes accompanying the defendant's album credited only one of the plaintiff brothers as a co writer of the defendant's song, and stated that the song sampled by Cordes was performed by the plaintiffs' band and used under a license by Bolden. The court ultimately found in favor of the defendant because limitations of both copyright law and the law of unfair competition precluded the availability of mandated attribution for the brother whose name was omitted as an author.

With respect to the right of integrity, consider the plight of deceased sculptor Frederick Hart, who sued Warner Brothers several years ago for including a reproduction of his renowned sculpture, Ex Nihilo, in the movie The Devil's Advocate. The sculpture at issue depicts the creation of mankind out of the torrential void, and it adorns the tympanum over the main entrance to the Washington National Cathedral. For Hart, Ex Nihilo was the product of a thirteen-year spiritual quest, which preceded his conversion to Catholicism. The movie features a near- exact duplicate of Ex Nihilo that hangs in the apartment of the movie's main character, John Milton. Milton, portrayed by actor Al Pacino, is actually Satan, and he appears on Earth in the guise of a corporate lawyer. In the movie's climactic scene, the carved bodies of the sculpture come alive and erotically grope one another, as Milton encourages his offspring to participate in an incestuous relationship.


Excerpted from THE SOUL OF CREATIVITY by Roberta Rosenthal Kwall Copyright © 2010 by Board of Trustees of the Leland Stanford Junior. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Roberta Rosenthal Kwall is the Raymond P. Niro Professor of Intellectual Property Law and the Founding Director of the Center for Intellectual Property Law & Information Technology at DePaul University College of Law.

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