ARTICLE: THE PERSONALITY INTEREST OF ARTISTS AND INVENTORS IN INTELLECTUAL PROPERTY*

  * In addition to those mentioned in footnote 12, this article has benefitted from the helpful comments of George Fisher, Owen Jones, Lance Liebman and George Shepherd. The author is counsel in the International and Legislative Office of the U.S. Patent and Trademark Office ("PTO"), Department of Commerce. This article was written substantially prior to the author joining the Department of Commerce; the views expressed are neither those of the Department nor the PTO.

Justin Hughes**

  ** B.A., Oberlin, 1982; J.D., Harvard, 1986; Henry Luce Scholar, 1988; Mellon Fellow in the Humanities, 1989.

   I. Introduction

 Like all social institutions, property rights are justified by the benefits they bring to individuals in society. The dominant understanding of this justification for all types of property has been an economic formula: property rights are the most efficient means to produce social wealth. Judges and commentators considering intellectual property have historically remained true to this formula; copyrights and patents are viewed as an ex ante incentive structure to produce the most social wealth at the least cost.

    The same general justification - benefits brought to individuals in society - has given rise to discussions of the non-economic benefits of intellectual property. Property rights, it was observed, are a means to protect the personality interest or "personhood" of individuals; this seemed especially true with intellectual property rights that are draped over creations of the human mind. Along these lines, personhood proponents could understandably be found in the vanguard of "moral rights" for authors, "reverse shop rights" for inventors, and "rights of publicity" for everyone.

    While personhood theory challenged economics' prior monopoly on explanations of property, the "pro-property" personhood theory was itself met with a deconstructionist reply specific to intellectual property: that creators' rights to control intellectual property should be limited to permit non-owners to manipulate the communicative messages, shape their own messages, and, thereby, increase the personhood benefits that intellectual creations bring to those non-owners. This argument is akin to the consumer benefit side of economic analysis. It repeats the established formula with only slightly different formulation: the creator's personality interest in her work must be balanced against the   [*82]   personality interest of consumers - who will be further creators - using her work in their own acts of creation/expression. Along these lines it is argued that authors need greater liberty to quote existing texts, minority groups need greater liberty to manipulate existing cultural symbols (like celebrity images), and performing artists need more liberty to interpret theatrical works.

    The interesting arguments in this area have obscured a deeper problem: we do not have a good grip on what constitutes the "personality" or "personhood" interests that may be present in a particular piece of intellectual property. We know that we can think about the "personhood interest" being held by one person, a few people (as in joint works), or, in the deconstructionist critique, in the multitude who are users, consumers, or the audience. We know that the personality interest may lead us into a highly subjective world, in which some proclaimed personality interests may strike us as illegitimate or unhealthy. n1

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   n1. Margaret J. Radin, Property and Personhood, 34 Stan. L. Rev. 957, 968-70 (1982); Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 335 (1988).

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    Beyond this, there has not been much mapping of the possible constitutive elements of the "personhood" interest in intellectual property. This article explores some of the interests which might live under the personhood tent. Drawing on a variety of problems, this article describes three identifiably separate personhood interests in an intellectual property res: n2 (1)creativity; (2) intentionality; and (3) identification as the source of the res. Without claiming that these three strands of personhood are exhaustive, I will explore areas of the law where these interests seem to influence and other areas where they do not, but perhaps should, hold weight.

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   n2. Res is everything that may form an object of rights and includes an object, subject-matter, or status. Black's Law Dictionary 1304 (6th ed. 1990) (quoting In re Riggles Will, 205 N.Y.S.2d 19, 21, 22 (N.Y. App. Div. 1960).

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    PartI describes the background for the search for "personhood" interests in property and then explores how much "creativity" - a fundamental notion in our copyright law - is a core personhood interest, that blurs the notions of originality and personal expression. But this does not mean that creativity occupies the same conceptual space as the idea of the individual "author" - an apparent assumption of some recent commentators. In fact, the notion of creativity comfortably co-exists with the idea of collaborative or co-created works. This article's discussion of creativity concludes by suggesting that the linkage of creativity to personal   [*83]   expression creates a generally unrecognized dilemma - one the legal system might solve by what I will call a "moral shop right."

    At the same time, one of the basic propositions of this article is that the notion of creativity, despite this complexity, does not explain all the personhood interests in an intellectual property res that may be worthy of protection. Indeed, too much attention on "creativity" has pushed other personhood interests into the background. The result is ad hoc reasoning by courts, catch-all phrases in statutes, n3 or efforts to shoehorn or redefine those interests into paradigms called, sometimes derisively, the "Romantic genius" and the "inventor-hero." n4 A personhood theory of intellectual property needs to provide for the inventor-hero's creativity. However, it can also provide for the inventor who identifies with his improved widget only in the same way that his neighbor takes pride in a recently purchased sports car. This article proposes that we might improve on such phrases with two additional concepts for personhood interests: "intentionality" and "sourcehood." Part II discusses "intentionality," a significant personality interest, andarguably more important than creativity. PartII's discussion shows how the concept of intentionality can help us understand copyright's "made-for-hire" doctrine as well as the personhood interest of inventors, photo-journalists, and "inadvertent" creators - problems that have always seemed ill at ease with a creativity-based property justification.

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   n3. For example, one country's law grants copyrights to anthologies only if "they are distinguishable by their originality, or their coordination or by any other personal effort justifying protection." Egyptian Copyright Law, Part I, Article 4(3), Law No. 354, June 24, 1954, as amended by Law No. 34, 6/17/75, art. 4 (emphasis added).

   n4. For descriptions of the inventor-hero and use of this phrase, see Anne L. MacDonald, Feminine Ingenuity: Women and Invention in America (1994); Steven Cherensky, A Penny for Their Thoughts: Employee-Inventors, Preinvention, Assignment Agreements, Property, and Personhood, 81 Cal. L. Rev. 595 (1993).

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    Finally, Part III considers whether merely being the source of a res creates legitimate personhood interests that justify protection of some sort. For example, I propose that personhood interests can arise from simply being the human source of an intellectual property res. Examples might be true "eureka" discoveries or profoundly accidental intellectual products. That personhood interests may arise in such settings is not surprising, particularly to the extent that we believe, as David Gauthier suggests, that "each person identifies with those capacities, physical and mental, to which he had direct access, and we see that this identification affords each person a normative sense of self...." n5 An individual's per-   [*84]   sonal identification with all of her physical and mental capacities could give rise to personal identification with the intellectual products of those capacities - without any reference to what we would call "creativity." n6 If an individual has a "sense of self" from her capacities, we should explore if and when the use of those capacities for intellectual production should lead to protectable personhood interests. n7 This "sourcehood" helps explain the personhood interests of inventors and suggests that in 1990 plaintiff Moore may have had a better case for rights over cells generated from his spleen than the California Supreme Court was willing to recognize in Moore v. University of California. n8

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   n5. David Gauthier, Morals by Agreement 210 (1986).

   n6. Actually, we should imagine an intermediary step. If a person identifies with his or her own mental capacities, this may cause that person to identify, first, with the process of using those capacities and, second, with the products of those processes. It is conceivable that someone would identify with the process without identifying (as strongly) with the product.

   n7. Are personhood justifications compatible with the Copyright and Patent Clauses of the Constitution? The wording of Article I, Section 8, Clause 8 ("to promote the progress of science and the useful arts") expresses an instrumental view of intellectual property law, a goal of "stimulating original investigation whether in literature, science, or art, for the betterment of the people that they might be instructed and improved with respect to those subjects." Ansehl v. Puritan Pharm. Co., 61 F.2d 131, 133-34 (8th Cir. 1932). But this incentive structure may just as easily encompass, for example, moral rights as economic rights. Acknowledgment as an author or an inventor may be a critical incentive for lots of people.

   n8. 793 P.2d 479 (Cal. 1990).

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    This discussion of creativity, intentionality, and sourcehood is a descriptive framework for better understanding the sentiments of creators and the educated classes from which they largely come and for whom they (partially) create. The question remains whether we should protect such interests. It may be wrong for people to (1)identify with their capacities; and then, (2)identify with the intellectual products of those capacities. Taking a cue from Rawls, we might believe that an individual does not have any particular entitlement to her talents, n9 jeopardizing any justification based on personality interests. Or we may question whether (2) is a legitimate move. 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 [*85]   when we mix our personality with the world, we lose part of our personality instead of gaining part of the world? n10 At another level, the discussion that follows is a mix of both descriptive and normative accounts of our legal system. For example, the proposal that intentionality helps explain the work-for-hire doctrine is: (1)a proposal that (descriptively) the concept is already at work in the thinking of courts and parties; and (2)a proposal that (normatively) we should bring the concept into the light of day to help make our conscious framework better fit our case law. This transiting between experience and logic, "being and meaning," is a regular process of legal thinking. n11 Perhaps the transiting is so regular that we too often forget when we are trying to describe how the world is and when we are prescribing how the world should be.

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   n9. Assume that individuals identify with (1)their capacities; and, thereby (2)the processes of using those capacities; and, thereby, (3)the intellectual products of these processes. We might conclude, as John Rawls suggests, that step (1) is wrong, that the individual does not have any particular entitlement to identify with the talents with which she is endowed. Professor Rawls considers even the ability to expend effort to be determined by factors outside a person's control and hence a morally impermissible criterion for distribution. See John Rawls, A Theory of Justice 104 (1971) ("The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit."); id. at312.

   n10. Robert Nozick, Anarchy, State and Utopia 174-75 (1974) (questioning why Locke thought "mixing" one's labor with the world gave that person property rights, instead of causing the person to lose the value of their labor).

   n11. As Professor Leff wrote, the law's life is "an attempt to create and maintain a coherent species of 'logic' that would not too ridiculously fail to reflect, or even refract, experience. It has been, in short, an attempt to construct a legal system that accommodates the equally exigent demands of being and meaning, and to do so in a universe in which what a thing does is only one of the things that it means, everything that it means is something else that it does." Arthur Allen Leff, Law and, 87 Yale L.J. 989 (1978).

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    Throughout this article, the discussion has benefited from the thoughts and impressions of a variety of creators. While not at all the kind of empirical work that is needed in legal scholarship on property, n12 the ideas of these people have helped shape the expressions in this article. n13

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   n12. George Priest's observation about patent scholarship is generally true of all intellectual property scholarship, i.e., that "the ratio of empirical demonstration to assumption in this literature must be very close to zero." George Priest, What Economists can Tell Lawyers about Intellectual Property, 8 Res. L. & Econ. 19 (1986). Priest concludes that there is, at present, an "inability of economists to resolve the question of whether activity stimulated by the patent system or other forms of protection of intellectual property enhances or diminishes social welfare ..." id. at 21, and that without empirical research "economic analysis" in this area is akin to "applied moral philosophy." Id. at 22.

   n13. I am grateful for discussions with a variety of creators, ranging from a four-time Emmy-winning screenwriter to the "first scientists in the world to express a human protein in bacteria" ((Stephen Hall, Invisible Frontiers): actors Shelley Hack, William Sadler; visual artist Brigitte Palmerl; inventors Arthur Riggs, Keiichi Itakura; writers Mark Saltzman, April Smith; cinematographer Arnold Glassman; and researcher Rob Lempert).

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   II. Personhood Interests from Creativity, Originality, and Personal Expression

 In her classic analysis of "personhood" in property, Margaret Jane Radin drew upon familiar material objects - a wedding ring, a portrait, a family home. When Radin describes how these objects become "bound up with personhood," n14 we intuitively understand   [*86]   what she means. The individual probably had no role in the material object's design or creation; most of us neither designed nor constructed the houses, furniture, and clothes we live with. Nonetheless, we come to identify with these objects and they come to be imbued with our "personhood."

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   n14. Radin, supra note 1, at 959.

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    With a wedding ring, an individual's personality seems to move into an existing object. Years ago, a husband and wife could have chosen a completely different set of rings but now the rings have great sentimental significance. In fact, our "personhood" may often be wrapped up in external objects we consider imperfect, inconvenient, or even ugly. The table inherited from Aunt May has an honored place in the home not because it is pretty, but because it is imbued with family history. n15 The same kind of identification can happen with intellectual property: a poem learned while young can become particularly important to the individual, a piece of music first heard on an important occasion can become imbued with personal meaning.

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   n15. Another possibility in the case of existing objects is that the personality does not "move into" the object so much as the object "moves into" the personality. Consider some of Milan Kundera's thoughts on personal development:
 
 

 There are two methods of cultivating the uniqueness of the self: the method of addition and the method of subtraction. [One character] subtracts from herself everything that is exterior and borrowed ... [another character], she keeps adding to it more and more attributes and she attempts to identify herself with them .... This method of addition is quite charming if it involves adding to the self such things as a cat, a dog, roast pork, love of the sea or of cold showers. But the matter becomes less idyllic if a person decides to add love for communism, for the homeland, for Mussolini, for Catholicism or atheism, for fascism or antifascism.
 
 

 Milan Kundera, Immortality 100-01 (Peter Kussi trans., 1991).

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    Professor Radin gave us examples of situations where "commodification," treating a physical res as fungible property, disrupts a personhood interest. For instance, a tenant may lose an apartment for market reasons - like increasing rent or a decision to redevelop the property - even though that tenant has greater personal identification with the apartment than the landlord. However, commodification of intellectual property does not engender the same disruptive separation of person from (personhood embodying) res. Intellectual creations are "public goods" in the economic sense. n16 They are "non-excludable" n17 in that once one has had some access to the intellectual property res, one can  [*87]   not be completely separated from it. If a person were deprived of all his music and books, he would have a great sense of personal loss, but yet would still know Satie's "Gymnopedies" by heart, would still remember much of Faulkner, and could still go to the library to read or listen to these favorites. n18

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   n16. A "public good" is a good for which "it is possible at no cost for additional persons to enjoy the same unit." Harold Demsetz, The Private Production of Public Goods, 13 J.L. & Econ. 293, 295 (1970). Put another way, the public good is subject to "non-rivalrous consumption." Stephen L. Carter, Owning What Doesn't Exist, 13 Harv. J. L. & Pub. Pol'y 99, 102 (1990). The sweep of a lighthouse beam is a public good that can be enjoyed by any and all ships along the coast; a clock atop city hall offers a public good - accurate information on the time - to all who pass nearby. The subjects of intellectual property are the prototypical public good; indeed, the lighthouse and the city hall clock are not far from intellectual property since the commonly shared public good is information.

   n17. Carter, supra note 16, at 102.

   n18. A distinction should be clear here: the difference between the intellectual property res and the particular, physical manifestation of that res. The copy of Lady Chatterly's Lover on my shelf belonged to my grandmother; it is that copy, not the novel, which has personal significance for me. Personhood interests in a physical object, whether a book or a wedding ring, were the subject of Radin's initial inquiries. While the intellectual propertyres is distinct from the object, it is also true that access to a poem, symphony, or fictional story is made much easier by owning physical objects. On that account, it might be noted, for example, that the bankruptcy laws of most states allow a bankrupt person to retain their home (often the greatest repository of personhood interests) and a dollar amount of personal effects; within that amount, the individual can choose the optimal personhood-preserving mix of family heirlooms, library, etc.

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    Of course, commodification of intellectual property may, as with commodification of physical property, systemically prevent prospective personhood interests from developing. When Mr.Potter's ownership of all the buildings in town prevents Emily & Geoff from buying an affordable house in Pottersville, prospective personhood interests are frustrated. Similarly, when the high royalties demanded by authors keeps Curt from buying books (and curtails the library's acquisitions), Curt's prospective personhood interests are frustrated. He cannot identify with a book to which he is denied access.

    So far this has been a discussion of personhood interests commonly linked to sentimental attachment or opportunity for personal growth. Intellectual property also brings to mind an intuitively different set of personhood interests. When we first encounter a res of intellectual property, instead of noting that an individual's personality has moved into an existing object, we may note that an individual's personality caused the object to come into existence. The object comes into the world already an embodiment or reflection of some particular individual. n19 So Delacroix called paintings "a bridge linking the painter's mind with that of the viewer," Solzhenitsyn said that literature "transmits incontrovertible condensed experience," and Thomas Jefferson called in- [*88]   ventions "the fugitive fermentation of an individual brain." n20 Armed with this belief about the nexus between the individual person and the intellectual product, we believe that rights to these intellectual products are desirable because "they strengthen our sense of individuality." n21

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   n19. Many physical objects also come into the world imbued with someone's personality, like a hand-built cabin or a hand-made Christmas wreath. But if we continue this line of thinking, the distinction between material property and intellectual property starts to blur because the material objects that most obviously come into the world imbued with personhood interests are also more likely to be objects of intellectual property laws, i.e., paintings or art pottery.

   n20. Letter from Thomas Jefferson to Isaac McPherson, in The Writings of Thomas Jefferson 333 (Saul K. Padover ed., 1967). See also, William Kingston, Innovation, Creativity, and Law 89 (1990) ("Legal protection of disembodied information thenceforward reflected the view that the work of writers and inventors is an extension of their personalities, and consequently in some sense, 'theirs.'"); JohnH. Merryman& AlbertE. Elsen, Law, Ethics, and the Visual Arts 145 (2d ed. 1987) ("The primary justification for the protection of moral rights is the idea that the work of art is the extension of the artist's personality, an expression of his most innermost being. To mistreat the work of art is to mistreat the artist ... to impair his personality.").

   n21. Lynn S. Paine, Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger, 20 Phila. & Pub. Aff. 247, 252 (1991).

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    But what does this have to do with our individuality? What is at stake? For example, "creativity" is a characteristic we cultivate in our children, linking it intimately with their development as autonomous individuals. We look at nearly indistinguishable finger paintings, praise them as original, make posters of them, and imagine that one of these children will be a new Pollock. Throughout our culture, we link, if not blur, our notions of creativity, originality, and personal expression. This linkage occurs whether we are turning our attention to kindergarten finger-painting or Carnegie Hall performances; whether our critical faculty is focused on intensely original work - like Picasso's Les Desmoiselles d'Avignon when it was first viewed n22 - or on works whose subtle variations are appreciated only by a few. In some situations, a work's origin may cry out to the whole world. It does not take much familiarity with modern painting to recognize most of Picasso's work as Picasso or most of Miro's work as Miro. However, the identification of some specific work with some specific individual occurs with subtler expression, similar to a particular defensive play in a chess tournament, a solution to a computer programming problem, the juxtaposition of a certain painting with another at an exhibition, a particular style of lighting scenes in a film, n23 or even the layout of sand traps and   [*89]   greens on a golf course. n24 A few years ago, a foreign affairs article appeared in a scholarly journal attributed to "Z". The speculation about the author included numerous people claiming it read like Ambassador JeanJ. Kirkpatrick or Zbigniew Braezinski. n25 In these latter, subtle cases, we may search for some new terminology like "critical judgment" or "intellectual insight." However, it is hard to deny that some sense of personal style is what lurks behind the terminology and, in turn, that this notion of "style" is some alloy of creativity and personal expression. n26

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   n22. Discussing this painting one commentator said, "the consequences of one individual act of perception were and remain incalculable .... This individual act of perception is recorded in a painting by Picasso, now called Les Demoiselles d'Avignon." Herbert Read, A Concise History of Modern Painting 67 (1974). The painting was "recognized instantly" as a "summit of achievement." Pierre Daix, Picasso Life and Art 65-78 (Olivia Emmett trans., Harper Collins 1993).

   n23. In discussing the development of a few leading cinematographers from the Hollywood studio system of the 1930s, John Bailey said: "Coming out of that [studio system were] some really stellar people ... who had such strength and such individual voice that they kind of transcended whatever studio they happened to be working for. Today you can look back and very easily recognize their films from the look irrespective of the director." Visions of Light (Arnold Glassman, director, 1994).

   n24. For example, the Southern California courses designed by George C. Thomas (including the Riviera Country Club) show his particular style of fairway and green architecture. Steve Springer, The L.A. Open Not The Retiring Kind: George Clifford Thomas Jr. Thought He Was Through Designing Golf Courses Before the L.A. Athletic Club Persuaded Him to Build Riviera in Santa Monica Canyon, L.A. Times, Feb. 22, 1993, at 3.

   n25. Z, To the Stalin Mausoleum, 119Daedalus, Winter 1990, at 295. See also David Warsh, Was It Daedalus or Icarus? Mystery Essay May Prove to be a Jape Gone Awry; The "Z" Affair, Boston Globe, Feb.18, 1990, at A25; The Mysterious Mr.-or Ms.- Z, Time, Jan. 15, 1990, at 33 (speculating on author's identity because of stilted prose).

   n26. This remains true whether one adopts a "modern" or "post-modern" view of personality. For an interesting discussion of this problem with photographic images, see Jeffrey Malkan, Stolen Photographs: Personality, Publicity, and Privacy, 75 Tex. L. Rev. 779 (1997). Malkan observes that "style" is a matter of what's "on the inside" and quotes Cocteau's observation that "decorative style has never existed.... Style is the soul ... ." Id. at 833.

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    So it should be no surprise that the three ideas - creativity, originality, and personal expression - are so thoroughly alloyed in American case law that there may be no principled way to disentangle them, despite efforts by some courts and commentators to keep originality and creativity conceptually asunder. In the 1991 Feist decision, n27 the U.S. Supreme Court made it clear that "originality" as used in copyright law should be defined, in part, by means of creativity:

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   n27. Feist Publications, Inc. v. Rural Tel. Serv. Co.,499 U.S. 340 (1991).

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 Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low, even a slight amount will suffice. n28

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   n28. Id. at 345. In the statutory grant that "copyright protection subsists ... in original works of authorship," 17 U.S.C. 102(a) (1988 & Supp. IV 1992), "original" is interpreted as having "originality" or meeting the "requirement of originality ...." See Key Publications v. Chinatown Today Publications, 945 F.2d 509, 512 (1991).

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 This "linkage" of creative-original-personal expression produces a complex or "multivalent" concept of creativity. One question is whether this linkage is inevitable or merely the result of historical accident; if the law developed at a time when these notions were culturally linked, although the cultural linkage might break down   [*90]   over time, the conceptual linkage in jurisprudence might continue.

    This is the spirit of the deconstructionist's observations about the single "author" and the immutable "text." The deconstructionists reason that the solitary author-genius is a creation of Romanticism that became embedded in American jurisprudence in the nineteenth century. Now, the argument continues, in a world of high technology and collaborative creative work, this construct needs to be replaced. There is much that is interesting, but also much that is dissatisfying about these deconstructionist observations. Assuming the "author" reflects the creative process of another time, the deconstructionists give us little real evidence of how our creative process is different. The evidence the deconstructionists do marshal is as much evidence of a benign, complex notion of creativity as it is evidence that the "author" lurks beneath intellectual property decisions. Instead of being a historical accident, there is good reason to think that the linkage between creativity, originality, and personal expression is both historically rooted and, at a deeper level, inevitable. That linkage, in turn, raises the issue of what I will tentatively call the "moral shop right."
 
 

   A. The Romantic Author-Genius and the Place of Creativity

 In recent years, critical legal studies imported the deconstructionist attack against "authors" and "texts" from French literary criticism. This wave of law review articles n29 has explored how copyright law developed with, and came to rely on the Romantic notion of creative authorship, "an extreme assertion of the self and the value of the individual experience ... together with the infinite [*91]   and the transcendental." n30 The "author" is seen as a historically contingent social construct that arose to capture the creative process in the nineteenth century and did not exist before that time. n31 In general, the deconstructionists view "the persistent judicial reliance on author-reasoning as a method of resolving ambiguity and suppressing the complexity of the world." n32 In a tempered, wide-ranging presentation, Professor James Boyle has even argued that the author construct gets used in economic analyses of legal controls on information. n33

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   n29. See, e.g., Jessica Litman, The Public Domain, 39 Emory L.J. 965, 1007 (1990); Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of Authorship, 41Duke L.J. 455 (1991) [hereinafter Jaszi, Theory of Copyright]; Martha Woodmansee, On The Author Effect: Recovering Collectivity, 10 Cardozo Arts & Ent. L.J. 279 (1992); James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 Cal. L. Rev. 1413 (1992); Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 Cardozo Arts & Ent. L. J. 293 (1992) [hereinafter Jaszi, Author Effect]; Andrea A. Lunsford & Lisa Ede, Collaborative Authorship and the Teaching of Writing, 10 Cardozo Arts & Ent. L.J. 681 (1992); Keith Aoki, Adrift in the Intertext: Authorship and Audience "Recording Rights," 68 Chi.-Kent L. Rev. 805 (1993) [hereinafter Aoki, Adrift]; Keith Aoki, Foreword: Innovation and the Information Environment: Interrogating the Entrepreneur, 75 Or. L. Rev. 1 (1996) [hereinafter Aoki, Foreword]; Keith Aoki, Property and Sovereignty: Notes Toward a Cultural Geography of Authorship, 48 Stan. L. Rev. 1293 (1996) [hereinafter Aoki, Sovereignty]; Margaret Chon, Symposium: Innovation and the Information Environment: New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, and Entrepreneurship, 75 Or. L. Rev. 257, 265 (1996) ("The binary structure of copyright law, dependent as it is on a strict division between author and reader, or original artist and copyist, is being corroded by networked digital information.").

   n30. Jaszi, Theory of Copyright, supra note 29, at 455 (quoting The Oxford Companion to English Literature 842 (M.Drabble ed., 5thed., 1985)).

   n31. Boyle, supra note 29, at 1526 ("The idea of [the] authorship is socially constructed and historically contingent."). Woodmansee, for example, quotes a 1753 German text to show us that "the scholar and the writer" were held on a par with "the papermaker, the type founder, the typesetter and the printer, the proofreader, the publisher, the book-binder." Woodmansee, supra note 29, at 280. But, the book she draws this inference from is an "economic dictionary" and all these professionals are held on a par as to their respective economic effect on "this branch of manufacture." Id. This does not address the social place of "the scholar and the writer." This would be the same as taking, as evidence of their similar social station today, a statement like "book publishing is an X billion dollar business, providing jobs for authors, editors, graphics technicians, book store clerks, and lumberjacks." Would such a statement make you believe that we treat authors and lumberjacks on a par?

   n32. Aoki, Adrift, supra note 29, at 816.

   n33. "The values of romantic authorship seem to seep - consciously or unconsciously - into economic analysis. And because in most conflicts the paradigm of authorship tends to fit one side better than the other, this romantic grounding provides economic analysis with at least the illusion of certainty. Authors tend to win." Boyle, supra note 29, at 1527. Professor Boyle has expanded this argument in James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (1996).

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    For the deconstructionists, the problem is that the author construct is unsuitable to an increasingly complex world of group, corporate, and collaborative creativity. n34 Sometimes, the deconstructionists present the "death of authorship" as a fait accompli, in both literary theory and writers' practices; it only remains for jurists to sign off on the death certificate. Other times, sometimes breathlessly in the same article, the deconstructionist sees a resurgence of the individualistic Romantic author construct with destructive consequences for less typical sources of intellectual production. There is valuable work in this deconstructionist jurisprudence, but there are questions about both its picture of how the world is and its vision of how the world should be. n35

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   n34. See, e.g., Aoki, Foreword, supra note 29; Boyle, supra note 29; Jaszi, Author Effect, supra note 29; Jaszi, Theory of Copyright, supra note 29; and Woodmansee, supra note 29. The focus on the author "drive[s us] to confer property rights in information on those who come closest to the image of the romantic author .... This is a bad thing for reasons of both efficiency and justice." Aoki, Foreword, supra note 29, at 6.

   n35. Some deconstructionists also see the development of the "work" as a construct used to disempower authors. But the increasingly broad property protection engendered by the "work" construct is a mixed, often valuable, gift for authors. In early copyright cases, any concept of "work" was limited to the exact physical embodiment of the author's copy. This resulted in authors losing value at the hands of less creative market players. See, e.g., Stowe v. Thomas, 23 F. Cas. 201 (E.D. Pa. 1853) (holding that copyright of Uncle Tom's Cabin is not infringed by non-English translation); White-Smith Music Publ'g v. Apollo Co., 209 U.S. 1 (1908) (copyright in printed sheet not infringed by the making of player piano roll for such music). See also Edward Samuels, The Idea-Expression Dichotomy in Copyright Law, 56 Tenn. L. Rev. 321, 334-47 (1989).

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    It is hard to disagree with this proposition. Even if one believes in the possibility of private language, most ideas remain social constructs. If the point is that the individual author "construct" is out of synch with the times - for which we need a more collectivist paradigm of creative output - then three observations are in order.

    First, the case for this new descriptive account of the world has not been made (and it will be difficult to make). It is difficult to measure how much more collective and collaborative the creative process has become compared to the past. The evidence mustered seems about as convincing as Bertolt Brecht having himself photographed in the 1930s "writing poetry in the midst of a crowd of workers to emphasize that the days of romantic political individualism were dead and poetry was now a collective proletarian activity." n36 On this point, the evidence assembled focuses on writing - particularly books, lectures, stories - without reference to closely related arts and activities. n37 For example, plays - collaborative efforts of playwrights, actors, set designers, and musicians n38 - have been a continuously vibrant part of both western and Japanese cultures for centuries. Renaissance frescoes were often collaborative works among similarly stationed individuals - as was the Brancacci Chapel in Florence by the painters Masaccio and Masolino. n39 There are also old literary traditions, western and eastern, of col-   [*93]   laborative writing, like the Japanese renga. n40

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   n36. Paul Johnson, Intellectuals 178 (1988). The authors often overstate the situation. For example, Professor Margaret Chon in a thoughtful discussion of "chain art" and other collaborative projects on the Internet, recently commented that "whether the work is an e-mail conversation or a serialized document, the individual-based notion of 'work' does not describe what is actually occurring in this new medium." Chon, supra note 29, at 271. But an "e-mail conversation" is not fundamentally different from a regular correspondence - a genre of historic publication that has flourished in the world of the "author" and "work."

   n37. This is even true of many articles focusing on the Internet. See, e.g., Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction and a New Common Law, 17 Loy. L.A. Ent. L.J. 651 (1997). However, there is also a growing literature about "collaborative" images on the Net. See, e.g., Chon, supra note 29; Raphael Winick, Intellectual Property, Defamation and the Digital Alteration of Images, 21 Colum.-VLA J.L. & Arts 143 (1997).

   n38. For example, songwriting, in all its subgenres, had often been a collaborative venture, including the works of Elton John and Brian Tauper, David Bowie and Brian Eno, Tim Rice and Andrew Lloyd Webber, and Jay Livingston and Ray Evans (winners of three Academy Awards and authors of compositions like Mona Lisa, Que Sera Sera, and Silver Bells). See Rachel Fischer, Piano Men, L.A. Times, Aug. 18, 1996 (Westside Weekly Supp.), at 1; See e.g., Patricia T. Perkens, "Hey! What's the Score?" Copyright in the Orchestration of Broadway Musicals, 16 Colum.-VLA J.L. & Arts 475 (1992).

   n39. See Perri Lee Roberts, Masolino da Panicale 53-83 (Oxford Univ. Press 1994).

   n40. In Japanese literature, there is the "renga," a traditional form of poetry in which several poets author one poem together. The poets "write successively stanzas of three and of two lines, without rhyme, but with a fixed syllabic measure." Octavio Paz & Charles Tomlinson, Airborn/Hijos del Aire 5 (1981). Inspired by the renga, Octavio Paz and Charles Tomlinson later took to writing sonnets together by correspondence. Id. at 5-7.

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    Consider the role of the "studio." At the close of this century, leading architects like I.M. Pei and Antoine Predock have studios staffed with junior partners and assistants who do much of the work on the building commissions given to the named architect. n41 Arguably the most striking feature of Louis Kahn's greatest work - the Salk Institute in San Diego - was not originally Kahn's idea. n42 The deconstructionists are correct to note that even when learned critics focus on the works coming out of such studios, the analysis is intensely individualistic, e.g., "what was Predock trying to achieve?" or "what did Kahn mean?" But this does not mean an old way of thinking is being imposed on a new way of producing intellectual works. Scores of understudies in the studios of Michelangelo and Leonardo worked on the masters' projects. The point is not that the "old" way was individualistic or collective; the point is that the "new" way has not been shown to be more collective.

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   n41. In the 1980s and 1990s, Predock, for example, employed between 15 and 40 people in his architecture studio. See David Dillon, Antoine Predock: American Visionary, Architecture, Mar. 1, 1995, at 55.

   n42. When Louis Kahn asked Luis Barragin how he would landscape the area between the two buildings at the Salk Institute, "the Mexican architect walked over to one building, touched its concrete, and corrected Kahn's question at its premise. The space should not be a garden at all, Barragin concluded ... but a plaza paved in stone cut by a channel of water.... The rest is architectural history: a square surfaced in travertine with a rivulet channeled straight down the middle to the Pacific." Joseph Giovannini, The Salk Addition, Architecture, Mar. 1, 1996, at 75.

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    Second, even if this descriptive account of present-day intellectual production is correct, this new nature of the process might not "diffuse and diminish emotions of original discovery and exclusive ownership." n43 It is possible, for example, that even as the process of intellectual productionbecomes more collaborative, personal feelings become more individualized and atomized. n44 Ageneral, increasing individualism in western society has been noted by many   [*94]   authors. n45 Architects and filmmakers, working in a historically collaborative, studio-oriented milieu appear as or more intensely individualistic as novelists who work alone. n46 Scientists and engineers working in research teams have, as courts have noted, a tendency to remember their own work on the teamin a magnified form. n47 Academics and entertainers both effusively thank their "collaborators"(in footnotes and award acceptance speeches, respectively) without sharing the billing or too much of the spotlight. There was just a touch of irony when two of the leading proponents of the "collective process" wrote back-to-back articles in one journal. Each article wasentitled Author Effect and each author thanked the other author in the first footnote. But the articles were not co-written; each retained individual authorship of one article. n48 Apparently, their own works have not become that "polyvocal." Of the people who write about the contemporary collaborative writing   [*95]   process, Andrea Lumsford and Lisa Ede seem to be rare exceptions who put their pens - and their empirical research - where their theories are. n49 Their work has not yet gone far enough to prove increasing feelings of a non-individualistic, collaborative process. n50 And what would we do if we concluded that intellectual production had become more collaborative, while that identification with intellectual products remained intensely individualistic?

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   n43. Benjamin Kaplan, An Unhurried View Of Copyright 117 (1967) (Kaplan expressed this hope in this seminal work).

   n44. As Professor Chon has observed:
 
 

 Even in intensely collaborative environments, individual feelings of ownership (or perhaps possessiveness) emerge .... Whatever the futureoligists predict, the Internet has not yet erased the vestiges of earlier historical views of authorship and works - views reinforced by cultural practices that persist despite successive waves of different kinds of "mechanical reproduction," appropriation art, post-structuralist theory and critical thinking in the law.
 
 

 Chon, supra note 29, at 274 (noting that students participating in a "chain art" project on the Internet were often upset when someone changed the joint image in a way they were unhappy with).

   n45. See, e.g., Jean Bethke Elshtain, Democracy on Trial 15-57, 129 (1993) (arguing that the civic notion of "rights" has been replaced by rights as the entitlements of individuals freed from "any and all ties of reciprocal obligations and mutual interdependence"); Christopher Lasch, The Revolt of the Elites: and the Betrayal of Democracy (1995) (noting that elite classes have abandoned their civic role for individual mobility and choice). But this same observation about the civic-minded liberty of the ancients versus the modern liberty of the individual to develop his capacities without hindrance even from his community was made by Benjamin Constant in the late eighteenth and nineteenth centuries. See Benjamin Constant, Political Writings 309-28 (Biancamaria Fontana trans., 1988); Biancamaria Fontana, Introduction to Political Writings, id, at 18-28.

   n46. For example, Louis Kahn proudly recounted the following tale from his childhood:
 
 

 One day as a small boy I was copying the portrait of Napoleon. His left eye was giving me trouble. Already I had erased the drawing of it several times. My father leaned over and lovingly corrected my work. I threw the paper and pencil across the room saying, "Now it is your drawing, not mine." Two cannot make a single drawing. I am sure the most skillful imitation can be detected by the originator.
 
 

 Louis Kahn, The Notebooks and Drawings of Louis Kahn, (Foreword) (1974). And it is hard to fathom Walt Disney's motives when it came to attribution in Disney films. The classic Walt Disney movies from the "golden age" of animation - Snow White, Fantasia, Jungle Book, Bambi - were created by the "Nine Old Men" of Disney, including Frank Thomas and Ollie Johnston, but Walt Disney - whose singular name is identified with that treasure trove - "would not allow any animator to take sole credit for a character in a film." Scott Collins, Frank, Ollie Ride Again, L.A. Times, Oct. 19, 1995, at F1.

   n47. For example, one court recounted the following:
 
 

 At trial, however, Green testified that the anvil groove was his basic idea, and that he was the prime mover in getting it done. At the time of the development of the [patented invention], the engineers at Van Dyck worked in groups, the members of which regularly met, interacted, and exchanged ideas. The three patentees regularly interacted in this setting in an effort to solve the problem of proper staple firing and formation. Given this scenario, and after reviewing the testimony of Green, it is clear that although Green felt the idea for the anvil groove was "his," it really was the product of the work of all three.
 
 

 United States Surgical Corp. v. Hospital Prod. Int'l Party Ltd., 701 F. Supp. 314, 340 (D. Conn. 1988). As another court commented, there is the "temptation for honest witnesses, who have worked years with a patentee to implement his ideas, to forget whose ideas they were." Acme Highway Prod. Corp. v. D.S. Brown, 431 F.2d 1074, 1083 (6th Cir. 1970).

   n48. See Woodmansee, supra note 29; Jaszi, Author Effect, supra note29, at 293.

   n49. Lunsford & Ede, supra note 29; Lisa Ede & Andrea A. Lunsford, Why ... Write Together?, 1 Rhetoric Rev. 150 (1983).

   n50. An exception to this - so rare as to prove the individualism of artists in collaborative enterprises - was Julie Andrews' 1996 refusal to be nominated for a Tony Award for her role in the Broadway production of Victor/Victoria. After the 318th standing ovation - which followed the 318th performance of the show - Andrews announced her decision to decline the nomination saying, "I have searched my conscience and my heart and find that I cannot accept this nomination and prefer to stand instead with the egregiously overlooked ... members of the Victor/Victoria family." Andrews specifically named 12 people to whom she attributed the success of the show, including the lighting and costume designers. See Joseph Steuer, Andrews' Bomb: "No" to Tony Nom, Hollywood Rep., May 9, 1996, at 1.

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    Third and finally, if both the creative process and sentiments arising from intellectual production are more collaborative, we still do not have much idea of how and how much a system of legal rights should protect all contributors to a given work. There are good arguments that the basic system should remain the same. n51 A scheme for attribution rights would probably not be difficult to sort out. Artists seem generally amenable to such attribution. Our popular culture already thrives on recognizably collective, albeit extremely hierarchical creativity. It is "Bruce Springsteen and the E Street Band," "Prince and the New Power Generation," or "Huey Lewis and the News." Still, one wonders how far such a scheme must go. In her 1990 album Attainable Love, folksinger Christine Lavin went so far as to thank one person for "the Echord" in a song and another colleague for suggesting one word for the lyrics of a different track. n52

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   n51. For example, Andre Lucas, of the University of Nantes, has observed:
 
 

 I do not think that interactivity ... fundamentally changes the facts of the matter. True, in making the "consumer" play a more active role, it takes away from the "aura" surrounding the act of creation. Nonetheless, the fact remains that, no matter what people say, there is indeed an "imaginer" and this suffices to restore the traditional basis. This does not mean that the new technologies do not complicate matters. For example, it may be difficult to separate the contributions of the computer programmer and the artist, or that of the provider of the basic scenario and that of the "adopter." However, this is basically a classic problem.
 
 

 Jean-Loup Tournier, Author's Rights and New Modes of Exploitation, 16 Colum.-VLA J.L. & Arts 441, 458 (1992).

   n52. Christine Lavin, Attainable Love (1990) (Liner notes read "All songs written by Christine Lavin except Sensitive New Age Guys co-written with John Gorka; the E chord in Kind of Love suggested by Bill Kollar; the word 'luminescent' in Venus contributed by Noah Adams.")

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    Beyond attribution, what rights belong to whom? One option would be to extend the present system, effectively giving each contributor rights to prevent any particular use (license, novelization, broadcast, etc.). This would produce a "veto" system which would surely diminish society's access to jointly written works. In such a system, pressures would be strong to create a background hierarchy of contributors so that not every contributor could prevent release of the work. Such a system could produce elaborate differentiation rights for different contributors. n53

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   n53. The European Community's "Directive 92/100/EEC of 19November 1992 on Rental Right and Lending Rights ..." distinguishes between producers, directors, and actors with possible inclusion of script writers and authors of underlying works as "co-authors" of films but enjoying different rights. See Said Mosteshar, Surprises in Store: Future Mandatory Rental Rights, 22 Int'l Bus. L. 37 (1994).

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    While questions remain about what is happening in the production of intellectual works and how law could address such changes, the reality is that the single author idea remains powerful in our legal system. As Professor Keith Aoki has noted, it is ironic that while some scholars have been marshaling European literary criticism against "authors," other scholars and lawmakers have been importing European notions of "moral rights" - legal privileges which elevate the importance of the individual who produces intellectual works. n54 Declaring the end of the romantic "author" and thoughtfully calling for programs to reshape the law without this nuisance concept seems just a little out of touch. We must first consider a dozen legislatures who have already passed moral rights laws for visual artists, and Congress which has grudgingly embraced the moral rights requirements of the Berne Convention. n55 If these laws are any indicia, then it may be, as James Boyle believes, that "the romantic vision of authorship is more important today than it was to Fichte and Krause, Pope and Macaulay." n56

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   n54. Aoki, Adrift, supra note 29, at 816-21. As Aoki has more recently noted on intellectual property laws in the brave new world of the Net, "copyright law does not seem to be on the verge of consignment to the dustbin of history anytime in the near future, prophesies of eminent cyberpundits aside." Aoki, Sovereignty, supra note 29, at 1308.

   n55. In 1990, Congress enacted the Visual Artists' Rights Act, 17 U.S.C. 106A (1988 & Supp. IV 1992), which provides limited attribution and integrity rights for artists who create graphic, sculptural, or photographic works, either in original or limited editions. In addition, several states have moral rights of varying strength for visual artists. See California Art Preservation Act, Cal. Civ. Code 980-89 (West Supp. 1993); Conn. Gen. Stat. Ann. 42-116s to 42-116t (West 1992); Artists' Authorship Rights Act, La. Rev. Stat. Ann. 51:2151 to 51:2156 (West 1987); Me. Rev. Stat. Ann. tit. 27, 303 (West 1988); Fine Arts Preservation Act, Pa. Stat. Ann. tit. 73, 2102-2110 (West Supp. 1992); R.I. Gen. Laws 5-62-2 to -6 (1987).

   n56. Boyle, supra note 29. Rights are "but one example of how the Romantic conception of 'authorship' is displaying a literally unprecedented measure of ideological autonomy in legal context." Jaszi, Author Effect, supra note 29, at 299.

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    Other things, however, could be at work. First, the rise of the   [*97]   "author" in eighteenth and nineteenth century cultural norms and its migration about that time into jurisprudence does not tell us that the word "author" in present-day court opinions has either the same content or the same influence it may once have had. We cannot condemn a social construct purely on its pedigree without reference to its present uses. n57 If the history of ideas teaches us anything, it is that ideas are not stable. The question is not whether the concept is historically contingent, but how contingent it is. The concept of a "republic" is also historically contingent, but that does not mean it lacks utility or applicability. n58 No doubt "romantic author" is a more historically contingent construct than "author" - just as "federal republic" would be a more historically contingent construct than "republic." If the point is to show us that "author" in American jurisprudence always carries "romantic author" imbedded in it, then there is a great deal yet to prove.

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   n57. If we did, we would, for example, have to attack the notion of "diversity" in college admissions. It appears that "diversity" became an issue at Harvard College in the early nineteenth century as a call for greater geographic diversity - thereby giving Harvard officials a fig leaf to admit more "WASPs" from the Midwest and fewer first generation immigrant Jews from the East coast. See Alan M. Dershowitz & Laura Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext?, 1 Cardozo L. Rev. 379, 386-400 (1979).

   n58. See generally Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (1992); Claude Nicolet, L'idea repubicaine en France (1982); Philippe Raynaud, Destin de l'ideologie republicaine, Esprit (Dec., 1983); Le Siecle de l'avenement republicain (Francois Furet & Mona Ozouf eds., 1993).

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    Second, while the phenomenon being studied may be a word whose meaning has migrated, the student of the phenomenon must make sure her concepts are clear, limited, and do not migrate. Sometimes, it appears that in order to find "author-reasoning" in a variety of places, the deconstructionists often morph their concept of author. They began with a "romantic author" and move through "romantic author-geniuses," n59 to "master mind," n60 and then, a romanticized, Faustian vision of "entrepreneurship." n61

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   n59. Aoki, Adrift, supra note 29, at 820.

   n60. Jaszi, Theory of Copyright, supra note 29, at 487.

   n61. Boyle, supra note 29, at 1508 (linking romantic images of innovative entrepreneur to romantic images of authors).

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    Studying a historically evolved concept may call for such leeway, n62 but the result may be that symptoms of "author-reasoning" can be found everywhere. If one began searching for iridium in geological samples, then started subtracting or adding electrons   [*98]   and protons as to what molecules would count as iridium, it would not take long to find "iridium" all around us. Because concepts in the social sciences lack the precision of atomic element descriptions, we must be cautious that "drift" in our concepts does not cause us to overexpand, and thereby undercut, our observations.

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   n62. This terminological "drift" also makes for more comfortable reading; ironically, it follows in the tradition of intellectual property case law which has been attacked for the same kind of imprecision. For example, in the 1884 Burrow-Giles Lithographic Co. v. Sarony case, Justice Miller used almost a score of different phrases to describe what was protectable by copyright, ranging from "original intellectual conceptions" to "originality of thought" to "intellectual production." 111 U.S. 53, 58-61 (1884).

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    After exploring the notion of creativity, the discussion below will sketch out how the deconstructionists' observations about "author reasoning" can just as well be diagnosed as the law's sometimes uncritical reliance on the notion of "creativity."

   B.

 The Multivalent Notion of Creativity

 From the deconstructionist perspective, copyright law "is grounded on an uncritical belief in the existence of a distinct and privileged category of activity" n63 called authorship. However fascinating the historical account of romantic author-genius' arrival into Anglo American law may be, our courts, like our art professors and theater critics, are more concerned with creativity than authorship.

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   n63. Jaszi, Theory of Copyright, supra note 29, at 466.

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    Yet understanding "creativity" is no easy task. To psychologists and psychiatrists, "the more one studies the subject of creativity, the more complex and bewildering it seems." n64 Freud himself reluctantly concluded that "before the problem of the creative artist, analysis must, alas, lay down its arms." n65 And to many artists "the most important element" of their works remains completely "inexplicable." n66 We do not even know what kind of relationship it has with other constructs of human activity, such as labor. n67 This is [*99]   serious baggage for someone arguing that creativity better explains judicial reasoning than the "romantic author." To meet that burden, the discussion that follows explores the popular notion of creativity and how its constituent elements provide a personality justification for intellectual property rights. Although creativity bears some aspects of "a distinct and privileged category of activity," it has over the decades actually required dilution of the romantic notion of creative genius and, in its place, put increasing emphasis on originality and personal expression.

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   n64. As Leon Berman elaborates:
 
 

 Attempts to define the creative process have focused on ... regression in the service of the ego; and such diverse affects as awe, wonderment, loneliness, inspiration, and ecstasy. Significant life experiences have been considered as well as innate endowments. Traumatogenic theories of creativity have implicated childhood abuse, loss, illness, and congenital deformity.

   In the midst of all this attention, the character of the poor artist has been idealized, diagnosed, and defamed. He has been associated with the infant, the child, and the adolescent; the dreamer, the prophet, and the rebel; the neurotic, the impostor, the sociopath, the pervert, the criminal, and the psychotic.
 
 

 Leon Berman, An Artist Destroys His Work: Comments on Creativity and Destructiveness, in Creativity and Madness: Psychological Studies in Art and Artists 59 (Panter et al. eds., 1995). Berman adds, "it must be concluded that we know a great deal more about madness than we do about creativity." Id. at 61.

   n65. Sigmund Freud, Dostoyevski and Patricide 177 (Standard ed., 1928).

   n66. "I have never known one great painter - not one! - who hasn't told me in some way or other that the most important element in his best works, as in the masterpieces of other painters, was inexplicable - no matter whether that implied mystery or clarity." Andre Malraux, Picasso's Mask 235 (June Guicharnaud trans., 1976).

   n67. There is a very ambiguous relationship between creative work as "work" and as pleasure. For example, watching the young Renoir paint, the critic Charles Gleyre asked him, "No doubt, it is to amuse yourself that you are dabbing in paint?" To which Renoir is supposed to have replied, "Why, of course, and if it did not amuse me, I beg you to believe that I would not do it." Otto Friedrich, Olympia: Paris in the Age of Manet 242 (1992). Aristotle was probably the first to observe that the "sciences which do not aim at giving pleasure or at the necessities of life were discovered, ... first in the places where men first began to have leisure. This is why mathematical arts were founded in Egypt; for there the priestly caste was allowed to be at leisure." Aristotle, 1 Metaphysics, 690-91 (Random House ed. 1941). Thus started the quandary of how an experience of leisure could be a process of labor. See Hughes, supra note1, at 302-05.

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   1.

 The Melding of Originality and Creativity

 In Feist a unanimous Supreme Court defined originality by reference to creativity. n68 But it is important to remember the path to this conclusion. The Copyright Act limits property rights to "original works of authorship." n69 The adjective "original" has led courts to create a threshold issuein copyright disputes of whether a work shows "originality." The Supreme Court packed the notion of creativity into the notion of originality in the context of using "originality" as a requirement for copyright protection. This is decidedly different from a social scientist's effort to unpack the notion of creativity; the Court was considering a judicial construct versus a social scientist exploring a social convention. Still, Feist is a starting point because the Court concludes that everything juridically original is also juridically creative. That logically entails the proposition that decided Feist: if something is not juridically creative, it cannot be juridically original. ("If j-original, then j-creative.") n70

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   n68. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

   n69. 17 U.S.C. 102(a) (1988 & Supp. IV 1992).

   n70. "Juridically original" (j-original) and "juridically creative" (j-creative) should be distinguished as legal concepts from general social conventions. For those familiar with symbolic logic, let's summarize the Feist decision as saying: if j-original, then j-creative, which is logically equivalent to if not j-creative, then not j-original (<diff>j-creative<arr rt><diff>j-original).

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    This equation (if j-original, then j-creative) was in reaction to a long line of case law that had supported the view that the requirement of originality was "little more than a prohibition of actual copying." n71 This juridical notion of originality, like the popular no-   [*100]   tion of originality, owes its currency to the idea of something's "origin": if a song owes its origin to Leslie, it must be original to Leslie. This measure of "originality" dates back to Justice Story's early nineteenth century opinions n72 and gave us a fairly bright line test: if the work was the independent creation of someone, it was "original" to that person. n73 (As described earlier, this minimalist sense of "original" - owing its origin to someone - is what we will explore below as the notion of "sourcehood." If the song owes its origin to Leslie, Leslie is the source of the song; if the cell line owes it origin to a skin sample taken from Tim's wrist, then Tim is the source of the cell line).

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   n71. Alfred Bell & Co., v. Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2d Cir. 1951). This is a view unquestioned by scholars writing prior to Feist. See, e.g., Litman, supra note 29, at 999 ("Copyright's threshold requirement of originality ... requires neither newness nor creativity, but merely creation without copying."); Robert C. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Colum. L. Rev. 516, 520-21 (1981).

   n72. Gray v. Russell, 10 F.Cas. 1035 (D. Mass. 1839) (Story, J); Emerson v. Davies, 8 F.Cas. (D. Mass. 1845) (Story, J.).

   n73. See Russ VerSteeg, Rethinking Originality, 34 Wm. & Mary L. Rev. 801, 806 (1993) (calling this "Type I originality"); Dale P. Olson, Copyright Originality, 48 Mo. L. Rev. 29, 36 (1983).

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    This pedigree of "originality" leads to a problem: originality meant that something could be juridically "original" in the sense that it was not copied, but the thing still might not be considered creative in the popular sense. Because American law makes originality the gate keeper of copyright protection, the Feist Court backed away from this narrow sense of "original." Instead, the Court embraced a formula tying originality with creativity. The Second Circuit and Professor Nimmer were among those who had already explicitly linked originality to creativity n74 while many copyright decisions had already required "creativity" for copyright protection - meaning that it was either embedded in the notion of "originality" or it stood as a separate requirement. n75

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   n74. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir. 1976) (en banc); 1 Melville B. Nimmer, The Law of Copyright 10.2 (1975). Prior to the Feist decision, Professor Litman also suggested that the "symbolic power" of originality was rooted in the "romantic model of authorship." Litman, supra note 29, at 1007. While not subscribing to the scholarship of the "romantic author" construct, I take Litman to have recognized that the legal notion of "originality" always required creativity.

   n75. The ambiguous place of the creativity requirement goes back at least to Justice Miller's formulation in Trade-Mark Cases that copyright protection applies to works "only such as are original, and are founded in the creative powers of the mind." In re Trade-Mark Cases, 100 U.S. 82, 94 (1879).

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    The program in Feist adopts the formula "if j-original, then j-creative" because this provides the more important rule, "if not j-creative, then not j-original." Embedding creativity in originality certainly makes the originality test more complicated than it would be as a mere test of sourcehood. n76 But beyond that where are we led?   [*101]   What counts as creative in the juridical sense? What counts as creative in the popular sense? In Feist, the court tells us only that creativity is not variations that are "mechanical," "entirely typical," or "garden variety." Intellectual products that result from choices about composition that are obvious, inevitable, or "age old practice(s)" do not count as minimally creative.

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   n76. Prompting one commentator to, perhaps inadvertently, enter the deconstructionist's fray by recently suggesting that creativity be cordoned off in a separate requirement of "authorship" or a "work." See VerSteeg, supra note 73, at 813-14.

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    There is nothing objectionable in any of these pronouncements or the fact that the Court would not say more. Supreme Court opinions are understandably restrained by fear that legions of lawyers will try to shoehorn a wide range of future human activity into choice phrases from opinions. But if judicial creativity is the same as the popular notion of creativity, we have a problem because the popular notion of creativity turns back to and depends on the popular notion of originality.

    As Russ VerSteeg has pointed out, "creativity" traces its etymological roots to the Latin verb creo, meaning "to beget" or "to give birth to." n77 The Latin root also means "to make" or "to produce" and is related to the verb cresco meaning "to grow up" or "to spring forth." n78 In short, the words' roots do nothing to help distinguish "creating" from "originating," or being the source of something.

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   n77. Id. at 826 (quoting Oxford Latin Dictionary 456 (P.G.W. Glare ed., 1982)).

   n78. Cassell's Latin Dictionary 142 (Marchant et al. eds., 1948).

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    A better starting point is that the idea of being the source of something, of originating something, and of creating something all rely on the idea of transforming existing materials into something that is identifiably different. Imagine that Patty purchases ten pounds of red clay from Adam, who dug the clay from a hillside on his farm. Patty uses five pounds of the clay to make a vase; she gives this vase to Kevin. She also gives the five remaining pounds of clay to Kevin (perhaps with a note about the pleasures of the potter's wheel). It is non-controversial that if someone asked you, knowing all this, "what is the origin of the vase?" you would probably say "Patty" and that the same reply would hold true if you substituted "source," i.e. "what is the source of the vase?" If you rephrased the question into "who created the vase?" you would again get "Patty" as the answer.

    Now consider if someone asked about the clay, i.e., "what is the origin of the clay?" or "what is the source of the clay?" This is more difficult. If you understood this question to be "how did the clay get here?" you might answer "Patty," but it seems more likely that you would treat this as a question about the clay's provenance,   [*102]   i.e. "where did it come from?" In that case, if someone asked you "what is the origin of the clay?" you would probably say "Adam" or "Adam's farm." Again, the same answer would come if "source" was substituted for "origin." The probable answer would be "Adam" or "Adam's farm."

    But what if someone asked who created the clay? The question might evoke "God," "Nature," or some explanation that Adam dug it up, but didn't "create" it. I believe that this question gets a different answer because Adam does not seem to have transformed the materials available to him when he dug them up. But this still does not evince a great difference between the popular ideas of "creating" and "originating." In fact, we could arrange a hierarchy of questions which, to increasing degrees, evoke the question of when an object first appears in the world (or first appears in the world in the form it now has):
 
 

 "What is the provenance of X ?"

    "Where/who did X come from?"

    "What is the source of X ?"

    "What is the origin of X ?"

    "Who/what created X ?"
 
 

 Substitute Patty's vase or Adam's clay for X in this series of questions - the questions initially can be met with an intermediary answer ("the delivery truck," "the back seat of Patty's car," etc.). However, as you go down the list, what is increasingly demanded is an answer about when X first appears in the world identifiable as X. This would hold true if you ran through this list replacing X with a commercial jetliner, an antique chest, or a manuscript, anonymous because the title page has been torn off. Point to a commercial jet at an airport and ask where did it come from; its last stop - Boston, Cincinnati, Denver - will be a fine answer. But point to the same aircraft and ask who created it; nothing but "Boeing" will do as an answer. The moment when something first appeared in the world in its present form is synonymous with the moment when other things were transformed to the new thing.

    The point of the hierarchy of questions is that it shows that both creativity and originality are rooted in the transformative process. n79 But there are many details that need attention. First, there   [*103]   is the issue of whether the transformative process of "creating" or "originating" focuses on the materials actually at the disposal of the person or the total world of materials or elements possibly available. Notions, especially populist notions, of both creativity and originality are context-specific; they measure transformation by what the person actually had available. For example, discussing "creativity," Robert Nozick writes,

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   n79. The view that transformation or novelty is fundamental to creativity is also put forward in Robert Weisberg, Creativity: Beyond the Myth of Genius 4-5, 247-48 (1993), a book that came to my attention after this article was written. Weisberg provides a thoughtful survey of psychological efforts to explore creativity, particularly how it differs from regular thinking - an issue that this discussion does not address.

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 Whether or not there really is anything new under the sun, a creative act produces something new or novel in comparison to what the creator had encountered and known previously. If unbeknownst to the creator someone else had produced something similar or identical ... still the creator's act would have been an act of creation. All that matters is that the effects of this earlier discovery have not seeped through and become known to the new discoverer in a way that makes his act less novel. Calling an act "creative" characterizes it only in relation to the materials it actually arose from, the earlier experiences and knowledge of the creator, not in relation to everything that has preceded it in the history of the universe. n80

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   n80. Robert Nozick, The Examined Life 35 (1989).

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 On this approach, if Ted, the chess novice, hits upon the Evans gambit in a chess game today, as his opponent, I may call his moves "creative" or "original" even though his moves are exactly how Captain W. D. Evans executed the game in the 1820s.

    But others would apply a more demanding measure. In considering Rembrandt and the master forger, Mihaly Csikszentmihaly reasons that only "Rembrandt's work is creative because he introduced some variations in the domain of painting at a certain point in history, when those variations were novel .... The very same variations a few years later were no longer creative, because then they simply reproduced existing forms." n81 Csikszentmihaly's definition of creative differs from Nozick's not in the test - which remains a test of identifiable difference - but in the reference set used for the test. Whereas Nozick refers to what the creator had encountered and known previously, Csikszentmihaly compares to all that has come before.

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   n81. Mihaly Csikszentmihaly, Society, Culture, and Person: A Systems View of Creativity, in Nature of Creativity (Robert J. Stermberg ed., 1988).

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    Whether the benchmark is an identifiable difference from what the creator had encountered or from all of what was known previously, the popular measure for the "original" or the "creative" still seems to be whether the thing seems identifiably different to   [*104]   us, not the creator. This is a problem we sometimes encounter with children: the child piles up sand in her sand box and asks us to look at what she has "made." We feign interest, but it does not look like anything has been "made" at all. No transformation is apparent to us; nothing in the sand box looks much different than the pre-existing conditions.

    The law rarely needs to worry about the sensitivities of infants, but the problem returns in the case of faithful reproductions and derivative works. The master copier example makes clear that the question of "transformation" from pre-existing materials is a question of mental or intellectual materials, not physical materials. Consider a case where the master copier reproduced Pineapple Bud, not on a canvas but in a different medium - a holographic image of Pineapple Bud, a tile mural of Pineapple Bud, etc. Professor Nimmer reasonably took the position that "mere reproduction of a work of art in a different medium should not constitute the required originality"; Nimmer reasoned that "no one can claim to have independently evolved any particular medium." n82 But while the result seems right, the reasoning is suspect. The real reason must be because expression of the same image in a known medium, while an identifiably different object, is not an identifiably different image.

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   n82. 1MelvilleB. Nimmer & David Nimmer, Nimmer On Copyright 2.08(c)(2) (1995).

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    That reproduction in another medium does not constitute transformation was emphasized by the Second Circuit in the 1995 American Geophysical Union v. Texaco Inc. case. n83 In American Geophysical, publishers of scientific journals brought suit against Texaco for Texaco's extensive copying of scholarly articles for researchers in its laboratories. The battle was engaged over the question of whether Texaco's copying constituted a fair use and, on that basis, both the trial court and the appellate court looked at a sample of Texaco's activities against the four factor test set out in 17U.S.C. 107(1)-(4). As to the first factor of whether the copying was a "transformative (or productive)" n84 use of the original, Texaco argued that its use of the articles was "transformative" because: "photocopying the article separated it from a bulky journal, made it more amenable to markings, and provided a document that could be readily replaced if damaged in a laboratory, all of which 'transformed' the original article into a form that better served [the sci-   [*105]   entist's] research needs." n85

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   n83. 60 F.3d 913 (2d Cir. 1994).

   n84. A question recognized as central to analysis under the first factor. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) ("The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.").

   n85. American Geophysical, 60 F.3d at 920.

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    Both the district court and the Second Circuit soundly rejected this argument on the grounds that "Texaco's photocopying merely transforms the material object embodying the intangible article that is copyrighted work." n86 Texaco's activities were found to fall on the side of "untransformed duplication," which made no "contribution of new intellectual value"; instead, being "little or nothing more than the value that inheres in the original." n87 On that basis, the first factor weighed against a finding of fair use.

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   n86. Id. at 923.

   n87. Id.

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    The American Geophysical opinion equates "transformative" as producing new "value," but then implicitly recognizes that "new" value can always be found. So some distinction is necessary between value that "inheres" in the work and "new" value. In an intellectual culture steeped in law and economics, we can understand a court trying to objectify its analysis in terms of "value." But beyond this conceptual dressing, it is clear that the distinction between inherent value and new value really relies on a judgment about transformation and not vice versa. New value depends on transformation and transformation depends on identifiable differences from what has come before.

    Does transformation - and thus a judgment of originality or creativity - depend on anything more than identifiable difference? Does it depend on significant differences or important differences or extensive differences? Some quantum of difference - either quantitative or qualitative? One author broadly identified creativity as: "(1) originality - new or unusual elements must be involved, and (2) adaptation to reality - outcomes must be meaningful to others rather than random or idiosyncratic." n88 Here the popular notion of creativity is being defined in terms of originality, which is not at all surprising given our discussion. "New or unusual elements" adds little to this. What is more interesting is the "non-random" requirement.

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   n88. Ruth Richards et al., Assessing Everyday Creativity: Characteristics of the Lifetime Creativity Scales and Validation with Three Large Samples, 54 J. Personality & Soc. Psychol. 476 (1988); see generally, Frank X. Barron, Creative Person and Creative Process (1969).

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    There are a few ways we could understand this. One prospect is that if "non-randomness" is a requirement for something to be creative, it is because random organization of existing elements are not identifiably different from what occurs (has occurred or could occur) in the background world. n89 The child's arrangement of   [*106]   blocks does not seem "creative" if it looks no more than random. Another prospect is that what is "non-random" is non-random because it is meaningful. Both these interpretations can be read from Aristotle's discussion of the concept of art. "Art" for Aristotle was that which owed its origin to a person and did not have its existence in the background world:

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   n89. There is no question that the showing of some random choice defeats creativity in the eyes of some judges. Toro v. R&R Prods., 787 F.2d 1208, 1213 (10th Cir. 1986). As the court said in Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997):
 
 

 Mitel's arbitrary selection of a combination of three or four numbers required de minimis creative effort, Mitel's own witness testified to the arbitrariness of the command codes .... [A] Mitel marketer who selected some of the "registers" and "descriptions" testified that he selected the numbers arbitrarily, without any attempt to place his mark on them.... We agree with the district court that the random and arbitrary use of numbers in the public domain does not evince enough originality to distinguish authorship.
 
 

 Id. at 1373-74.

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 Art is identical with a state of capacity to make, involving a true course of reasoning. All art is considered with coming into being, i.e., with contriving and considering how something may come into being which is capable of either being or not being, and whose origin is in the maker and not in the thing made; for art is concerned neither with things that are or come into being by necessity nor with things that do so in accordance with nature (since these have their origin in themselves). n90

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   n90. Aristotle, Nicomachean Ethics, Book VI, Ch. 4 (Terence Irwin trans., 1985) (emphasis added). Aristotle distinguished art as concerned with the "variable" versus scientific knowledge which is concerned with the "invariable" and the universal. But both art and science are "states by virtue of which the soul possesses truth by way of affirmation or denial." Id. at Book III. But Aristotle later has a more difficult time identifying the "truth" of art than of scientific knowledge. He says, "wisdom in the arts we ascribe to their most finished exponents, e.g. to Phidias as a sculptor ... and here we mean nothing by wisdom except excellence in art." Id. at Book VII.

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 In other words, creativity/originality requires a transformation not arising from the background order, whether that order is considered random or deterministic. But whatever the ontology, the candidate to whom we always turn to explain the transformation separate from the background world is the person - personal expression, personal intention, reflections of the person.
 
 

   2. The Connection between Creativity and the Personal

 It is said that Diego Rivera's affair with his wife's sister, Christina, was discovered because of the way he painted Christina's image into a mural at the Mexican National Palace - in an "ecstasy pose," n91 while the extraordinary paintings of his wife, Frida Kahlo, reflected her own experiences - spinal injuries from a car accident,   [*107]   a miscarriage, and struggles with Catholicism. n92 Edward Munch's first major work, The Sick Child, recalls the death of his sister Sophie from tuberculosis. It was a scene he would repaint six times in his life. n93 Julian Green acknowledges that several of his characters "inherited" his own fascination "for long, adventurous walks" through the streets of Paris n94 while Eudora Welty sees the emphasis in her stories on weather, schoolteachers, and parades all stemming from childhood memories. n95 Ibsen was even more direct in transforming personal experiences into literature. He was known to abruptly start inviting individuals to dinner parties, then just as unceremoniously drop them from his social list, once he had enough of their manners, speech, and attitudes to create a character. n96 Even animators draw upon their experiences with humans to draw memorable characters and creatures. n97 We could fill an encyclopedia with such examples of "art" based on the artist's experiences. n98 As Bono, lead singer of "U2" remarked, "musicians, painters, whatever, they have no choice but to describe where they live." n99

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   n91. Joan F. DiGiovanni and Ronald R. Lee, The Art and Suffering of Frida Kahlo, in Creativity and Madness, supra note 64, at 81, 85.

   n92. Id. at 88-95. See also Hayden Herrera, Frida: A Biography of Frida Kahlo (1983).

   n93. Lawrence Warick & Elaine Warick, Edvard Munch: A Study of Loss, Grief and Creativity, in Creativity and Madness, supra note 64, at 177-78 (discussing repeated paintings of his mother and paintings of three characters when he was involved with a married woman).

   n94. Julian Green, Paris 129 (1991).

   n95. Eudora Welty, One Writer's Beginning 4-37 (1984). Miss Welty also describes how her college experience reading Yeats in the library stacks while it was snowing outside became a scene in a story she wrote, id. at 81, and how the poem The Song of Wandering Aegus runs through the stories in her collection, The Golden Apples. Id.

   n96. Johnson, supra note 36, at 102 (describing the character Kaja Folsi in The Master Builder as "an act of human larceny."). Johnson also details how Ibsen developed characters from his father, id. at 84, Emilie Bardach, an Austrian girl with whom he corresponded, id. at 101-02, and his friend Bjornson, id. at 95-96.

   n97. Betsy Sharkey, The Heart and Soul of a New Animator, N.Y. Times, May 19, 1996, at B1 (describing how animator Andreas Deja relies on his own personal experiences "to make a character real").

   n98. For an example of art discussing how art is derived from experience, see Yasunari Kawabata, Beauty And Sadness 31-33 (First Vintage Int'l ed., 1996) (One of the main characters, Oki, is a novelist whose greatest work was a fictionalized account of his true life affair with a 16 year old, Otoko.). See generally, Weisberg, supra note 79 at 233.

   n99. Jon Pareles, Searching for a Sound to Bridge the Decades, N.Y. Times, Feb. 9, 1997, at B34.

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    From such examples, we know that there is a connection between creativity and personal experience. The connection could be one of practicality and prudence, the most successful creators staying close to what they know. Kahlo herself explained that many of her paintings were self-portraits "because I am the subject I know best." n100 In giving advice to a young writer, Jane Austen suggested "Let [your characters] go to Ireland, but as you know nothing of the Manners there, you had better not go with them. You will be in danger of giving false representations ...." n101 But it   [*108]   appears to be something more than creativity conveniently married to personal memories. Many of us - perhaps most of us - move uncritically from a belief that intellectual works reflect personal experiences to a belief that intellectual works are personal expressions. This is worth exploring. It is important to consider how personal expression may be something different from repeating or reproducing personal experiences.

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   n100. Warick & Warick, supra note 93, at 178.

   n101. Letter from Jane Austen to Anna (Aug. 10, 1814). Jane Austen also displayed her lack of personal experience when writing to Clarke, the Prince Regent's librarian, about a novel featuring a clergyman much like the Reverend Clarke:
 
 

 I am quite honoured by your thinking me capable of drawing such a clergyman .... But I assure you I am not. The comic part I might be equal to, but not the good, the enthusiastic, the literary. Such a man's conversations must at times be on subjects of science and philosophy, of which I know nothing; or at least be occasionally abundant in quotations and allusions which a woman who, like me, knows only her mother tongue, and has read very little in that, would be totally without the power of giving.
 
 

 Letter from Jane Austen to James Stanier Clarke (Dec. 11, 1815), in Jane Austen's Letters 442 (R.W. Chapman ed., 2d ed. 1979).

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   a. Weak and Strong Views of Creativity-as-Reflection

 Faithfully reconstructing a situation from one's personal past - memory regurgitation - would be an act of personal reflection. It would reflect personal experiences as though the person was a passive, if imperfect, mirror of extra-person reality. But let's consider two distinct strands of the view that intellectual works reflect the personal experiences of those that produce them.

    First, it is certainly easy to believe that an intellectual work is a personal reflection of the individual - a reflection of their infancy, their childhood, their recent experiences, or what they had for lunch today. As Welty writes, "any writer is in part all of his characters. How otherwise would they be known to him, occur to him, become what they are?" n102 Liam Hudson and Bernadine Jacot believe, for example, that the broad choice of what field academics and professionals enter is a reflection of parent/child relations in infancy. n103 At a more refined level, Hudson and Jacot believe that the research projects undertaken by many eminent social scientists reflect neither random choices nor strategic career opportunities nor influential teachers, but "the mind helping make the raw edges of personal experience smooth." n104 Their examples include both   [*109]   Sigmund Freud and Alfred Kinsey pushed to their respective works in sexuality - the former highly normative, the latter dispassionately descriptive - by their own homosexual experiences. n105

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   n102. Welty, supra note 95, at 101.

   n103. Lian Hudson & Bernadine Jacot, The Way Men Think 81-82 (1991). Hudson and Jacot believe that the "science and technology, far from requiring an extension or distortion of imaginative processes that are properly personal, provide the 'male' imagination with venues within which it can be deployed in its most fluent and spontaneous form." They also believe that male artists turn their imagination away from this "natural home" by refocusing on the "female body from which it initially took flight." Id. at 172.

   n104. Id. at 15.

   n105. Id. at 2-12. See also Weisberg, supra note 79 at 233.

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    In these last cases, personal experiences reflect in intellectual works because they are deep causes in the course of events that produce the works. But the "reflection" theory has a much more explicit side. The possibility is that personal reflection, personal expression, and creativity should all collapse on one another, i.e., that "creativity" is only a fancy covering for observation - the direct reproduction of things we have experienced. n106 The Athenian Greeks were the first to conclude that art was an act of reproduction or imitation, n107 a view that was reflected in Aristotle's reference to fine arts as "imitative arts" and "modes of imitation." In this spirit, Emily Dickinson described the eminent painter as "one who could repeat the Summer day" and "reproduce the Sun." n108 Dickens modeled a character in Bleak House, Harold Skimpole, so precisely after Leigh Hunt that Dickens noted to a friend that his fictional character was "The most exact portrait that was ever painted in words .... It is an absolute reproduction of the real man." n109 Kundera tells us that "Hemingway's work is but a coded form of Hemingway's life." n110 Perhaps even sometimes an individual's personality is most manifest in a res as a negative inference: I recognize that the emotions or the vision in the intellectual work come from some human experience, but I know that it could not come from my experience. n111

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   n106. As in the New Englander who thought Thoreau got his ideas from conversations with one of Emerson's relatives: "He did set them [Bulkey Emerson's views] down, but he didn't give Bulkey the credit.... I think Thoreau was nothing more than an early new journalist. He was an excellent reporter, but he was nonobjective and he was very bad about his sources." John Manson Mitchell, Ceremonial Time 141 (1984). In considering "creativity" as an act of our experiences, we should not underestimate how much the process of building memories may itself be at least individual physiology, if not individual personality. Neurological researchers are only beginning to establish the exact chemistry involved in real-time selection and sorting data for short term memory and long-term memory. David Brown, Substance Resembling a Marijuana Component Helps Brain Sort, Store Information, Wash. Post, Aug. 21, 1997, at A15.

   n107. John Dewey, Art as Experience 7 (1932).

   n108. Emily Dickinson, Poem 307, in The Complete Poems of Emily Dickinson 145 (Thomas H. Johnson ed., 1960).

   n109. Ann Blainey, Immortal Boy: A Portrait of Leigh Hunt 189 (1985).

   n110. Kundera, supra note 15, at 336. In Eudora Welty's words, "my imagination takes its strength and guides its direction from what I see and hear and learn and feel and remember of my living world." Welty, supra note 95, at 76. Or as one reviewer wrote of Edmund White's novel The Farewell Symphony, "Edmund White is writing his autobiography the old-fashioned way: He's disguising it as fiction." David Streitfeld, Who's Who, Wash. Post, Oct. 12, 1997, at 15 (book review).

   n111. In describing the emotional power of a fictional singer, Peter Hoeg writes:
 
 

 I still have [his] record. It's still an unforgettable recording. I've sometimes thought that the body, our very physical existence, puts a limit of how much pain a mind can bear. And that [he], on that record, reaches that limit. So that afterward the rest of us can listen and make that journey without going there ourselves.
 
 

 Peter Hoeg, Smilla's Sense of Snow 215 (1993).

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    Indeed, the label "impressionism" came from a very imitative, passive interpretation of what the impressionist painters were doing. Jules Antoine Castagnary characterized them as "impressionists in the sense that they render not the landscape, but the sensation produced by the landscape." n112 Other critics considered the impressionist as direct, immediate representation of light, rather than objects seen "indirectly" by the play of light they produce. n113

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   n112. Jules Antoine Castagnary, L'Exposition du Boulevard des Capucines: Les Impressionnistes, LeSiecle, 29April 1874, reprinted in Helene Aclhemar, L'Exposition de 1874 chez Nadar, Centenaire de l'impressionnisme 265 (Paris 1974).

   n113. See John Rewald, The History of Impressionism 330-38 (1961).

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    But while the "weak" view of creativity-as-reflection is beyond cavil, the "strong" reflection view does not make sense. Indeed, in ancient Greece, there was already a sense that pure representation was not a complete explanation n114 and, as Dewey observed, "imitation" to the Greeks may not have meant a "literal copying of objects" as much as an effort to reproduce "the emotions and ideas that [were] associated with the chief institutions of social life." Thus Aristotle viewed music as the most imitative of all the arts, not because it captured "the twittering of birds [and] the gurgling of brooks [but because it] reproduces by means of sounds the affections, the emotional impressions, that are produced by martial, sad, triumphant, sexually orgasmic, objects and scenes." n115

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   n114. As S.H. Butcher says, "the idea of imitation is connected in our minds with a literal or servile copying; and the word as transmitted from Plato to Aristotle, was already tinged by some such disparaging associations." S.H. Butcher, Aristotle's Theory of Poetry and Fine Art 121 (1951).

   n115. Dewey, supra note 107, at 252.

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    The initial explanation of impressionist painting gave way to a difficult effort among critics to reconcile the notions that the "impression" (and the resulting painting) was both "an 'accurate' view of nature and an individualized or an 'original' sensation belonging to a particular artist." n116 In the aesthetic theory of many late nineteenth century French thinkers, the "impression" of nature born on a tableau carried the unique temperament of the artist. n117 Posner terms this vision of artistic production "the older idea of creativity as imitation with enrichment." n118 Given the enormous   [*111]   break between classic painting on the one hand and Manet and the impressionists on the other, what may be surprising to us is that critics of the time did not put more emphasis on the "temperament" of the new wave of artists. What was the "enrichment" added by the artist? The next section addresses that hanging question with what we might call the "robust" view of creativity-as-expression.

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   n116. Richard Shiff, Cezanne and the End of Impressionism 18 (1984).

   n117. Id. at 27-38 (discussing views of Eugene Veron, Eugene Delacroix, and Emile Zola).

   n118. Richard Posner, Law and Literature: a Misunderstood Relationship 348-49 (1988) (discussing T.S. Eliot).

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   b. Simple and Robust Views of Creativity-as-Expression

 Today, as Barthes notes, "it is impossible to write without labeling oneself," n119 but this was not always true. The connection between intellectual works and personal expression has not been universal across time. As Andre Malraux observed: "our civilization [has not] relinquished expression. That an artist wants to express something - even himself, especially at a time when individualism reigns supreme - goes without saying ... [but f]or four or five thousand years works of art - whether expressions of the artist or of the sacred - were, like contemplation, anonymous." n120 We may never know for sure what gave rise to the current social convention that artists unanonymously express themselves. One possibility is that the Industrial Revolution freed (or removed) the artist from the role of artisan, a producer of objects used in daily life. John Dewey believed that this isolation of the artist from the regular flow of social services and the productive activities of daily life gave rise to the individualist impulse in modern times. n121

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   n119. Roland Barthes, Writing Degree Zero 1 (Annette Lavers and Colin Smith trans., 1968).

   n120. Malraux, supra note 66, at 221. Barthes describes pre-classical literature as a time when "men are still engaged in the task of getting to know nature, and not yet in that of giving expression to man's existence." Barthes, supra note 119, at 55.

   n121. Because of changes in industrial conditions, the artist has been pushed to one side from the main streams of active interests.... He is less integrated than formerly in the normal flow of social services. A particular esthetic "individualism" results. Artists find it incumbent upon themselves to betake themselves to their work as an isolated means of "self-expression." In order not to cater to the trend of economic forces they often feel obliged to exaggerate their separateness to the point of eccentricity. Consequently artistic products take on to a still greater degree the air of something independent and esoteric.
 
 

 Dewey, supra note 107, at 9-10.

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    However, once it becomes a social convention that creative works are expressions, this social norm could easily become self-sustaining. Creators may decide to express themselves because, regardless of what they really want to do, audiences will take their creations as personal statements. Some artists might conclude, on the strength of social convention, that committing themselves to "express" some message in their works is the way to be creative.   [*112]   The notion that an artistic work makes some clear statement from the artist could be called the simple view of creativity-as-expression.

    At the same time, many creators, such as Picasso, Borges, Stravinsky, and Graham Greene, strived against this view of creativity, often saying that they are not making personal expressions in their works. n122 The simple view of creativity-as-expression also seems ill fitting with the repeated observation that artists fail when they are too directly or self-consciously expressive. Octavio Paz, Parra Nicanor, and Milan Kundera have all criticized efforts of their colleagues to write poetry with political messages. n123 John Dewey - to whose theories we will return - put part of the case against direct expression this way: "indifference to response of the immediate audience is a necessary trait of all artists who have something new to say." n124

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   n122. See Jorge L. Borges, Borges and I, in Labyrinths 246 (James E. Irvy trans., 1964), quoted in Hughes, supra note 1, at 366 n.241. Picasso repeatedly expressed the feeling to Andre Malraux that he was compelled to paint, indeed taken over by painting. He told Malraux that "painting makes me do just what it wants me to." Malraux, supra note 66, at 17, 188. "I can talk about Van Gogh maybe," he told Malraux, "But not about painting. [Painting] makes me do what it wants me to: to press on, to press on further and further, to press on even further than that ...." Id. at 118. Later in life, Malraux, himself an accomplished writer, agreed with Picasso's distance from his work: "I was of the same mind as Picasso when it came to his exhibitions: all that's about a guy who has the same name as mine." Id. at 145. More radically, Igor Stravinsky believed that "music was ... powerless to express anything at all, whether a feeling, an attitude of mind, a psychological mood." Igor Stravinksy, An Autobiography 83, 256, 274-76 (1936). Even Che Guevara, editing the diaries of a trip he took around South America in his mid-twenties, wrote, "the person who wrote these notes died the day he stepped back on Argentine soil. The person who is reorganizing them and polishing them, me, is no longer me, at least I'm not the me I was." Ernesto Che Guevara, The Motorcycle Diaries 12 (Ann Wright trans., 1995). Critical acclaim for Beck's song Loser was similarly misguided: "everyone assumed I was the song," Beck told one reporter, "It was a bad case of mistaken identity." Robert Hilburn, The Freewheelin' Beck, L.A. Times, Feb. 26, 1997, at F1.

   n123. Octavio Paz commented on his inability to write poetry about too political, too propagandistic subjects. See Selden Rodman, Tongues of Fallen Angels 158 (1974). Parra Nicanor, in discussing Pablo Neruda, also commented on the "metaphysical impossibility" of writing a "political poem." Id. at 83.

   n124. Dewey, supra note 107, at 104. Dewey also attacked Samuel Johnson's "philistine's sturdy preference for reproduction of the familiar" with true art. Id. at 79.

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    But this places before us two questions. First, if many of our greatest artists do not believe that their works are personal expressions, what general proposition can we put forward that creativity involves expression? Second, whatever creativity is, we know that it relies on - uses as fuel - the personal experiences of the creator. Something more than those experiences must be produced for us to say that the individual has been creative. That is why creativity and originality are so intertwined. But what about the "more" - how and in what sense is it expression of the individual? Let us con-   [*113]   sider some possible refinements of our notion of creativity that may provide some insight into these questions.

    The non-mechanical and non-necessary. One of Robert Nozick's suggestions is that "for a product to be creative it must not only differ from what came before but also stand in no specific obvious relationship to its predecessors." n125 Professor Nozick initially proposes that when a new object is derivable from predecessors by "mechanical application of a clear rule" it stands in a kind of "specific obvious relationship" to that predecessor and it is not creative. This harkens back to Aristotle's observation that the artistic is not determined by nature. Things at T<2> which owe their origin to "necessity" or to "nature," are things which arise from mechanical application of rules to the background situation at T<1>. If you know there are so many seeds in a particular type of soil, with particular amounts of water, and sun at T<1>, then you can be pretty certain that at T<2> you will have plants which are the "mechanical" result of biological rules. If you are looking through a kaleidoscope at T<1>, you know how a kaleidoscope works, and you turn the kaleidoscope, then the new pattern at T<2> is the result of the mechanical, albeit elaborate, application of rules about how kaleidoscopes work and the initial pattern of glass in your kaleidoscope.

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   n125. Nozick, supra note 80, at 36.

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    This advances us some. n126 The discussion of creativity and originality had concluded that both require a transformative process so something identifiably new is produced - something that did not exist before. To this we can add Nozick's suggestion that no matter how transformed the new result is - no matter how many turns of the kaleidoscope - it will not be creative unless it does not come from the application of mechanical rules.

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   n126. Many psychological descriptive accounts of creativity could still reduce creativity to a "mechanical" activity - at least for a sufficiently large mind. For example, if creativity is the combination of "remotely associated" ideas - a view put forward by Keith Simonton - then one only needs to mechanically combine more and more remote ideas to get something creative; if it involves "lateral thinking" - the view of Edward deBono - then one needs only keep recombining patterns laterally to get something creative. See Weisberg, supra note 79, at 56-67.

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    In the discussion of creativity and originality, we also held out the possibility that the new result needed to be non-random in order to be "original." I suggested that a random result would be a result of the background situation - the sand in the sandbox having whatever shape the winds and local fauna last gave it. A non-random result would be a result apparently not from the background situation - and this again would fit with Aristotle identifying "nature" or "necessity" as places that art does not come from.   [*114]   The point is that the background situation can be treated as deterministic or random (or with elements of both - as with the kaleidoscope example). Something will be considered "creative" only when it appears to come from neither a purely mechanical process, nor a purely random one. We identify this process that navigates between determinism and randomness - this process that produces the "non-mechanical new" - as something that goes on inside the individual person. n127 But this still may not provide any strong evidence that the process is "expressive" of those individual persons.

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   n127. For an example of how a creator can fail to navigate these two extremes, see Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997), in which, on the one hand the plaintiff's command codes were found to be unprotected because they were the result of "random" and "arbitrary" number selection, id. at 1373-74, while, on the other hand, the plaintiff's command "values" were found to be "unprotectable ... because they were dictated by external functionality and compatibility requirements ...." Id. at 1376.

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    Self-restoration. Another possibility is that creativity is, as Graham Greene said, "a form of therapy." n128 This could explain why so many artists describe their work as critical to their psychological well-being - "a physical and spiritual necessity," as Sam Francis said. n129 Nozick has also recognized that:

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   n128. "Art is a form of therapy. Sometimes I wonder how all those who do not write, compose, or paint can escape the madness, the melancholia, the panic-fear inherent in the human situation." Creativity and Madness, supra note64, at 137 (quoting Graham Greene).

   n129. In addition to describing his painting as "a physical and spiritual necessity" Francis said "when I'm disturbed, upset in my life, it all comes up to the surface boiling." Sam Francis Exhibition, Jeu de Paume Museum, Paris (Jan.1996).

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 The creative work and product come to stands, sometimes unconsciously, for herself or for a missing piece or part, or for a defective one, or for part of a better self. The work is a surrogate for the creator, analog of her, a little voodoo doll to tinker with and transform and remake in something analogous to the way she herself, or a part, needs to be transformed, remade, or healed.... Important and needed work on the self is modeled in the process of artistic creation and symbolized there. n130

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   n130. Nozick, supra note 80, at 39.

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 But viewing creativity as a therapeutic process, a surrogate reworking of part of the self, does not mean that the work is an "expression" in the sense of an act of communication. Perhaps we could solve this problem by saying that the process of producing intellectual works should be likened to therapy in which one expresses problems to a therapist. An artist's work may be her statement to an unknown audience and, like the confessional, there may be some candor-inducing comfort in at least the veneer of audience anonymity. What is said may be frank or opaque, just as one may   [*115]   tell a therapist things directly or obliquely, candidly or metaphorically.

    Creativity as generalization. Another aspect of creativity that finds favor in some descriptive accounts is the idea that creativity involves generalization from personal experiences, i.e., creativity as the successful quest for universal truths. Edmund Wilson lavished praise on Edna St. Vincent Millay in just these terms:
 
 

 In giving supreme expression to profoundly personal experiences, she was able to identify herself with more general human experiences and stand forth as a spokesman for the human spirit, announcing its predicaments, its vicissitudes, but as a master of human expression, by the splendour of expression itself, putting herself beyond common embarrassments, common oppressions, and panics. n131

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   n131. Edmund Wilson, The Portable Edmund Wilson 72 (1983).

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 In less majestic terms Garrison Keillor has noted that "experience" only becomes literature when it moves beyond what actually happened to the author, "when it no longer matters to the reader whether the story is true or not." n132

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   n132. Garrison Keillor, The Poetry Judge, Atlantic Monthly, Feb. 1996, at 93. In comparing Shakespeare's characters to those of the French dramatist Pierre Corneille, one author commented that "Shakespeare's Romans are Romans, while Corneille's characters are Normans," noting that "Corneille was unable to detach his own personality from the characters he created. He endowed them with his own attitudes. Shakespeare had the genius of dissociating the characters he was describing from his own personality." Leon R. Yankwich, Originality in the Law of Intellectual Property, 11 F.R.D. 457, 473 (1952).

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    But describing creativity this way seems to exacerbate our search for personal expression in creativity. The uncovering of universal themes in personal experiences sounds a bit like a spirit - alien, foreign, different - descending on the person: the Muse seizing them and their experiences for the purpose of a universal statement, not a personal statement. Producers of intellectual property - both artists and inventors - often speak this way. However, if their comments were accurate descriptions of these cases, it is possible that the only personality justification to link the intellectual work to the individual would be, what I will call below, a "sourcehood" interest. The more deux ex machina arrival of some universal insight, the less that process of intellectual creation seems to be a form of personal expression.

    Synthesis of the Old and the New. Each of these options - self-restoration, generalization, and non-mechanical newness - offers insights on creativity, but does not much advance our understanding of how the creative process could be fundamentally an expressive process. We are left with only a few options. One option is to   [*116]   admit that we are using "personal expression" as a bridge concept between an act of purely reflecting personal experiences and the production of the non-mechanical new. To the extent that an object appears to be anything more than a direct reflection of personal history, we label the "more" as personal expression and, therefore, creativity.