Creativity, including remix creativity, is part of a good life. It should be valued for itself, not tolerated. Creativity should be a favorite of the law even if we do not need to worry about incentives or disincentives (chilling effects). Incentive stories, because they do not explain creativity, can mislead us about the value we want to protect. Under the First Amendment, we protect religious conviction not only, and not even primarily, because we worry about the chilling effects of religious persecution. Devout believers have been willing to go to jail and even die for their causes; they’re hard to chill. We protect religious faith because it’s so important, and a core wrong of suppression is its disrespect of the believer. Likewise, respect for creativity, and for the possibility that every person has new meaning to contribute, should be at the core of our copyright policy. Instead of monetary rewards or even artistic control of how works are transmitted to others as our highest value, we should aim for policies that maximize participation — even when that changes the mix of economic winners and losers. Economic reward and control rights are likely to be part of the proper balance, but only part.
Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions
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Fanworks, as creative endeavors existing outside the money economy, are fundamentally based on the inexhaustibility of the imagination. Yet the creative desires fanworks express and satisfy are not alien to other, marketized creative works. Indeed, creators’ passions are strikingly similar across the boundary between “original”/authorized and unauthorized derivative works. That similarity has lessons for copyright’s incentivizing ambitions, as well as for a broader cultural policy that strives to allow people to express themselves creatively.
(…) fan experiences of creativity are also incompatible with control-based theories of copyright positing that authors’ personalities are harmed by unauthorized uses. Julie Cohen has pointed out that the incentive model, in which copyright is a vital driver of creativity, “justifies drawing firm distinctions between authors, on the one hand, and consumers, imitators, and improvers on the other.” Once that move has succeeded, broad rights to control copying, public distribution, and derivative works follow as night follows day.