Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theorists of all varieties have generally subscribed to this understanding, describing creativity in terms of an individual liberty whose form remains largely unspecified. Economic theorists of copyright work from the opposite end of the creative process, seeking to divine the optimal rules for promoting creativity by measuring its marketable byproducts. But these theorists offer no particular reason to think that marketable byproducts are either an appropriate proxy or an effective stimulus for creativity (as opposed to production), and more typically refuse to engage the question. The upshot is that the more we talk about creativity, the more it disappears from view. At the same time, the mainstream of intellectual property scholarship has persistently overlooked a broad array of social science methodologies that provide both descriptive tools for constructing ethnographies of creative processes and theoretical tools for modeling them.
Georgetown Law Faculty Publications and Other Works