The Random Muse: Authorship and Indeterminacy
2002; Routledge; Volume: 44; Issue: 2 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Intellectual Property Law
ResumoINTRODUCTION I. AND ORIGINALITY A. Works of Genius B. A Spark of Creativity C. A Clap of Thunder D. Random Numbers II. INDETERMINACY AND THE ARTS III. AUTHORSHIP AND PROPERTY RIGHTS A. The Natural Rights of Authors and Social Benefits of Authorship B. Romantic and Un-Romantic Authorship C. The Role of Originality 1. Diversity of Expression 2. Identification 3. Natural Rights 4. Defining Commons IV. SEEKING AUTHORSHIP IN INDETERMINATE WORKS A. Hypotheticals 1. Artist A 2. Artist B 3. Artist C 4. Artist D B. The Random Muse C. Suggestions D. Caveats 1. Systems 2. Competing Claims 3. Other Issues CONCLUSION INTRODUCTION One of more elusive concepts in copyright law is that of authorship. Authorship refers to production of works, meaning works which author has newly created, as opposed to from other sources, and which possess at least some minimal degree of creativity. (1) Copyright protects works of (2) and extends only to what is original in such works. (3) Fixing boundary between private property and public domain, (4) authorship/originality requirement has been described by Supreme Court as the very `premise of copyright law' (5)--the touchstone, (6) principle, (7) and sine qua non of copyright. (8) Metaphors like bedrock suggest a concept of authorship that is immutable, sharply defined, and reassuringly solid. Authorship, however, is so olden characterized by what it is not that it is sometimes difficult to say, positively, what authorship is. Consider a scholar who prepares a new English-language translation of Iliad, with notes and an introduction based on scholar's historical research. The scholar can claim no right to original work, or to any aspect of translation that accuracy compels. (9) Nor can scholar prevent others from reciting facts revealed by his research. The facts may be original in sense of having appeared nowhere else, but they were not created by scholar; they were discovered by him or, in a sense, copied from world. (10) Even choices reflecting matters of taste (e.g., this poetic turn of phrase instead of that pedestrian one) are influenced, if not determined, by a variety of external factors: books scholar has read, lectures he has attended, perhaps even genes he has inherited. Examined too closely, process of authorship can seem less a conscious and creative act than a mechanical confluence of forces. It can be difficult to locate maker (11) who wills into existence that which is personal and new. (12) On other hand, complexity of Iliad and richness of English language mean that countless translations could be written. The facts revealed by scholar's research could be expressed in a variety of ways. While variations that mark scholar's work may be determined by his chromosomes or his experience, his nature or nurture, they are still his variations. Like most copyrightable works, whether they are artistic creations, literary works, musical compositions, or some other form of expression, scholar's translation of Iliad bears characteristic attributes of authorship: work is unique; (13) it owes its existence to scholar; it is product of scholar's intellectual labor; its form reflects author's intentions and conveys his message; and it reflects scholar's individuality--his personality, his experiences, his self. Yet consider following hypotheticals, moving now from field of scholarly translation to that of abstract painting, where unfettered originality would seem most feasible. * Artist A notices a pleasing pattern on floor of a hardware store, where countless people have carelessly dripped paint. …
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