If you jostle an IP scholar awake in the middle of the night and ask them, “What is the canonical justification for copyright and patent,” the first thing they’ll say is, “What the hell are you doing in my bedroom?” But the second thing they’ll say is, “Limited exclusive rights in works of authorship and inventions are necessary to preserve incentives to create them.” Or as Samuel Johnson more bluntly put it, “No man but a blockhead ever wrote, but for money.”
Everyone knows that this is the received wisdom. But strangely, at the same time, no one actually believes it. Intuitive counterexamples to Johnson’s “blockhead” comment are easy to conjure. Authors often produce content with zero expectation of remuneration simply because they have something to say and want to share it with others. Scientists engage in pure research because they want to contribute to how we understand the world (and also because they are paid a salary, by universities, or drug companies, etc.). Developers produce innovations not only to become the next Uber or Google but to improve others’ lives and for the love of making stuff.
The transparent incompleteness of the Johnsonian view that only financial incentives motivate creation raises a further question: If love of money doesn’t (or doesn’t solely) explain creativity, what does? Here is where Andres Sawicki enters the conversation with his fantastic recent article, The Law of Creativity?, which makes major advances in our understanding of how creativity works and what law can do to better encourage it.
Sawicki’s model of creativity begins with identifying three components. First, a domain of extant artifacts and ideas that promise to function as the building blocks of creative production, such as books, art, or scientific theories. Second, makers who combine their insights with content in those domains to produce new innovations and artifacts. And third, evaluators who assess and curate the content of those domains.
This domain-maker-evaluator model in turn yields a temporal model of how creativity emerges and declines, one that complicates traditional assumptions that creation is simply a product of individual effort inflected by state or private incentives. Sawicki identifies several historical instances illustrating that creativity tends to follow a standard pattern. At first, domains tend to be sparsely populated, making it difficult for makers to find material from which to develop new work. In some instances, though, evaluators intervene to organize and popularize the content of some domains to render them more accessible to makers. When this happens, domains may take off, producing the kind of bursts of collective production familiar from, for example, impressionism in the late 1800s or nuclear physics in the early 1900s. Such efflorescence, Sawicki cautions, can have downsides. As domains become overcrowded they tend to ossify, leaving little space for new content.
Sawicki’s descriptive account of creativity as a self-sustaining ecosystem with uniform, predictable features yields several substantive insights. For example, he argues that patent’s written description requirement should be revised to render it less technical and more accessible to a general audience. Such a move, Sawicki suggests, would enable more cross-discipline creativity by allowing a wider range of evaluators to understand and leverage the domain of patented inventions.
In terms of copyright, Sawicki argues that imposing an attribution requirement—and in particular, one that honors the contributions of all makers rather than just a few dominant authors—would facilitate a richer understanding of how creativity works, allowing evaluators to better understand how domains operate and calibrate their understanding of multiple makers’ contributions to works of authorship.
There is so much to enjoy about this article. For one thing, it reaches well beyond the closed universe of law review scholarship, inviting insights from scholars working in fields such as psychology and sociology (e.g., Amabile, Czikszentmihayli) that have made major advances in how creativity works. It is also replete with fascinating stories that illustrate its author’s point. The Law of Creativity? doesn’t just articulate a compelling theory of human and social creativity. It also explodes the myth that Van Gogh was a solitary genius creating ex nihilo and explains why it took so long for someone to invent the bicycle.
Sawicki’s piece is as important as it is entertaining. He is certainly not the first author to propound alternative accounts of creativity that complicate the dry and no longer plausible Johnsonian model.1 The Law of Creativity? makes an important move beyond preexisting work, though, in two respects. First, it identifies the central importance of evaluators who, alongside creators and artifacts, play a formative role in creative ecosystems. Second, he translates insights about the psychology of creativity at an individual level into a claim about how creativity operates both temporally and socially.
And while Sawicki’s arguments about how his model should inflect IP doctrine are cogent, his work motivates other lines of inquiry as well. For example, if IP is not (or is not only) a public goods problem to be solved by state intervention, what posture should law take toward creative production more generally? Should law even seek to intervene in these processes, or should it let the domain-maker-evaluator dynamic develop without government interference?
If anything, Sawicki’s work invites much bigger questions than just how a few features of patent and copyright law could be tweaked. It should cause us to rethink basic premises of our IP system. Here’s just one: Sawicki observes that domains sparsely populated with content often languish absent evaluators who seek to intervene in them to make these domains more susceptible to innovation. This appears to be a shortfall that law could remedy, suggesting in turn that patent and copyright may do well to incentivize evaluators to engage with early-stage domains rather than focusing their incentive policies solely on creators themselves.
A host of other questions arise out of Sawicki’s model, further illustrating its generative potential. He collapses, for example, the very different kinds of creativity that lead to the subject matters of patent and copyright. It seems entirely plausible that the domain-maker-evaluator dynamic may play out differently with respect to works of authorship and inventions. And while Sawicki has convincingly shown (again) that creativity does not exclusively depend on financial incentives, it remains true that for some categories of high-investment works (most obviously large-scale motion pictures), exclusive rights are a prerequisite to protect creators’ investments. So rethinking how IP systems work may not mean choosing between competing models of creativity, but acknowledging their non-mutual-exclusivity and imagining how law can help optimize social creativity that takes into account multiple such models and motivations.
The foundational Johnsonian premises of our IP system are as old as the American Republic itself, so it’s hardly surprising that they could use some serious updating. Andres Sawicki’s The Law of Creativity? is a compelling and readable effort in this direction, one that invites us to rethink basic features of how creativity works and what that means about how law should engage with it.
- Sawicki rightly acknowledges other contributions in this vein, such as Jeanne Fromer, A Psychology of Intellectual Property, 104 NW. U. L. Rev. 1441 (2010) and Gregory Mandel, To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity, 86 Notre Dame L. Rev. 1999 (2011).
