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How Copying Promotes Creativity

On Wednesday, NPR ran a story on composer Michael Giacchino that highlights the importance of fair use copying to the creative process. Giacchino won an Oscar in 2010 for his score for the film Up, and he has written the score for many other films, including the just-released Jurassic World, Tomorrowland, Mission Impossible 3, Dawn of the Planet of the Apes, and the recent Star Trek films.

Giacchino told NPR how he became obsessed with Steven Spielberg films as he was growing up:

“When I wasn’t able to get myself to a theater to re-watch, you know, E.T. for the hundredth time, or Raiders of the Lost Ark, or Star Wars, the only way to relive those movies was to listen to the soundtrack.” When he did go to the theaters, Giacchino would sneak in tape recorders so he could listen to the soundtracks later. “I still have all those cassettes,” he says. “I would just listen to Raiders of the Lost Ark over and over and over.”

As this anecdote reveals, artists don’t just spring into existence. They must learn their craft, and part of that educational process involves close study of the great works of the masters that went before them. As with Giacchino, this study may require the copying of works to get the necessary long-term access to them. Additionally, artists often train by copying other artists. A standard exercise in a creative writing class is to copy, by hand, several pages of prose by great authors such as Ernest Hemingway or William Faulkner. Similarly, studio art classes often require students to paint copies of important paintings in different styles (e.g., Impressionist, Modern, Abstract, etc.). Fair use is the legal theory that permits this copying of works not yet in the public domain.

Most film soundtracks are now immediately available with the release of the film, obviating the need for the kind of audio-recording Giacchino did when he was growing up. But imagine a budding filmmaker who wants to study the various film and narrative techniques used in Jurassic World. Because of the studios’ windowing strategy, a DVD of the film probably would not be available for at least 120 days. Until then, the filmmaker might not be able to rely on fair use to make his own copy. 18 U.S.C. § 2319B, which imposes felony penalties on the use of an audiovisual recording device to make a copy of a motion picture in a motion picture exhibition facility, does not recognize fair use as a defense. (However, this anti-camcording provision, and its state-law equivalents, may be unconstitutional to they extent that they don’t allow a fair use defense.)

Hollywood also imposes barriers on film classes. The MPAA has consistently opposed an educational exemption on the Digital Millennium Copyright Act’s prohibition on the circumvention of the technological protection on Blu-ray discs. Film studies professors would like to include high quality clips from Blu-ray films in the presentations they create for their film classes, but the MPAA contends (as recently as in the Section 1201 hearings the Copyright Office conducted at the end of May) that the professors can make due with lower resolution clips.

On the one hand, it is encouraging to see that new digital distribution technology is helping to overcome the barriers that artists like Giacchino faced when learning their craft. It is unfortunate, however, that even as these hurdles are being removed, new ones are being instituted that might hold back the next generation of artists.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.