Creativity, Improvisation, and Risk: Copyright and Musical Innovation

The goals and beneficiaries of copyright frameworks have long been contested in varied contexts. Copyright is often treated as a policy tool that gives creators incentives to create new works. Incentive theories of copyright often emphasize appropriability, which enables copyright owners to ensure that they profit from their copyrighted works by exercising control over uses of and access to, such works. Although copyright clearly imposes costs in the form of restrictions on access to copyright-protected works and inefficiencies in the form of deadweight loss, the benefits of copyright are thought by many to outweigh the costs. Copyright discussions may at least implicitly assume that copyright frameworks, and the control rights that accompany such frameworks, increase creativity. However, little is actually known about the extent to which copyright increases creativity. Further, conceptualizations of creativity within legal discussions remain vague. Copyright discussions often pay significant attention to the risks to ownership for copyright owners posed by potential users and uses of copyright protected works. However, a focus on risks to ownership may obscure the presence of other types of risk in copyright contexts. Copyright control mechanisms may also pose significant risks to creativity and innovation because they may not sufficiently acknowledge the importance of uses of existing works as a creative force. Musical innovation, for example, has come in many instances from creators taking creative risks through uses of existing materials in ways that do not fit well within dominant copyright assumptions about creativity. Creators operating within such creative paradigms may expose themselves to greater legal risks as a result of their uses of copyright protected material. Copyright discourse would benefit from greater attention to potential dangers that copyright frameworks might pose for creativity and innovation. Further, greater consideration should be given to the extent to which risks taken by creators in the creative process, evident in practices such as improvisation, may foster creativity. INTRODUCTION Although copyright has expanded to artistic practices that necessarily involve more than the visual, a visual-textual bias in copyright has remained. The expansion of copyright to music underscores potential incompatibilities in applying visual copyright to an artistic practice, such as music, that is both oral and aural. In fact, music creation does not require writing, but may include oral and, at times, written traditions. Courts in music copyright cases give primacy to visual, written aspects of music and typically assume that oral musical expressions fall into the category of a performance, which is in turn assumed to derive from and be secondary to an underlying written musical composition. The visual bias in music copyright has become more problematic in the post-sound-recording era, when copyright increasingly protects things other than written musical expression. Further, the twentieth-century displacement in the popular music arena of European-based music by African-based music, which often embeds significant elements of oral music traditions, particularly challenges music copyright's visual assumptions. I. COPYRIGHT, CREATIVITY, AND RISK A. The Goals of Copyright The Intellectual Property Clause of the U.S. Constitution provides that: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (1) The authority for copyright thus embeds two key concepts that have long been a focus of intellectual property scholarship: progress/innovation and the rights of authors. Authors' fights have been typically conceived of as a type of property right, (2) hence "intellectual property," but could, in reality, be structured in a number of different ways. …