Roberta Rosenthal Kwall
DePaul University College of Law

Originality in Context

There is no universally applicable view of authorship, originality and creativity. Postmodernists argue that no single work manifests creativity and innovation deriving from a unitary source.  Drawing on this view, legal scholars have criticized copyright law as a whole for its implicit reliance on the Romantic view of authorship.  If true artistic creativity is, in essence, a fiction, then no reason exists for privileging authors above other producers when it comes to maintaining the integrity of their works. Moreover, literary theorists document that the concept of “authorship” as we understand that term today is a relatively recent phenomenon that began to take shape in the eighteenth-century.  English professor Martha Woodmansee reminds us that how we see the concept of “authorship” today was not inevitable given that the heritage of the Renaissance was to view authors as either “craftsmen” who mastered what was put before them for the enjoyment of the “cultivated audience of the court,” or alternatively as “inspired” by external forces.  The idea that an author is personally responsible for his work was inconsistent with both of these conceptions but emerged later, in part as a result of the influence by a class of professional writers in the eighteenth-century who sought to justify legal protection for their efforts. Thus, perhaps the authorship construct in which we indulge today was “neither natural nor inevitable.”  Without doubt, however, this construct is the one that has prevailed and thus it cannot be readily removed from the discourse.

Moreover, the postmodern view ignores the reality that when an author borrows from the cultural fabric in crafting her work, it is still the unique combination of past efforts and the author’s original contributions that invest the author’s work with its unique and inviolate stamp.  As Fred Yen has observed: “Authorship is therefore not the creation of works which spring like Athena from the head of Zeus, but the conscious and unconscious intake, digestion, and transformation of input gained from the author’s experience within a broader society.”  By questioning the ability of authors to draw upon personal originality as their creative inspiration the postmodern perspective arguably does not sufficiently account for the inspirational dimension of authorship. Although authors freely borrow from the landscape of existing cultural production, a work of creative authorship nonetheless manifests the author’s individual process of creativity and artistic autonomy.  Indeed, the very act of authorship entails an infusion of the creator’s mind, heart and soul into her work. This inspirational or “non-economic” impetus to create provides the theoretical predicate for moral rights protection such as the right of an author to receive attribution and to maintain some control over her work’s public presentation.

In order to address adequately authorship concerns with respect to works whose creation is rooted, either wholly or partially, in the inspirational realm, the focus must be on the author’s relationship to her work and her sense of personal satisfaction or fulfillment resulting from the act of creativity itself.  Under this framework, the external work of authorship is seen as the embodiment of the author’s artistic processes, autonomy and dignity. Moral rights protections such as attribution and integrity rights reaffirm the author’s work as a reflection of its creator and an embodiment of the author’s autonomy, internal creative processes and dignity. As a behaviorial category, dignity can find realization only in the external embodiments that are seen as commodifications of the author’s the inner personality.  According to this view, authorship dignity cannot be assessed absent the author’s externalized message, but in turn the message of the author’s work cannot be understood without reference to the author’s intrinsic motivations. Thus, safeguarding an author’s right to select an attribution of choice is vital because attribution is a central component of authorship dignity.  Similarly, assaults upon a work’s integrity damage authorship dignity because a work that has been modified against the author’s will no longer represents her original internal creative processes.

The purpose of this Essay is not to make the case for moral rights protection. Instead, it asks whether moral rights should be accorded to a limited variety of authors. Even those who argue that moral rights protections in the United States are justified might still question whether they should be applicable to all types of “authored” works.  International treaties that attempt to situate Intellectual Property rights within the discourse of human rights do not necessarily require a work to be copyrightable in order to receive moral rights protection.  Still, in most if not all countries, moral rights protections attach to works that are subject to copyright protection.  If we assume that copyright law, at least in the United States, sets a particular floor for the concept of originality, it would not make sense to discuss moral rights in conjunction with works that do not possess at least this minimal level of originality. On the other hand, just because a work is sufficiently original to obtain copyright protection does not mean that it automatically should receive the additional safeguards of moral rights.  Sound reasons may support confining the application of moral rights to a smaller category of works than are covered by copyright law.  For example, the conventional justifications for applying moral rights only to works we label “fine art” rather than to the products of all artisans embrace the view that such works are unique, entail substantial skill and effort, and are “generally acquired principally for their expressive or decorative character, and not for functional or utilitarian uses.”  Such works, therefore, are perhaps less likely to need modifications that may ultimately conflict with the creator’s artistic vision in order to serve their intended functions.  Even in France, regarded as the birthplace of moral rights, limitations exist regarding the enforcement of moral rights depending on the nature of the work: “obviously, a [French] court is going to be less scrupulous about an editor’s polishing up a set of instructions for use of a home appliance than his reworking the text of a poem.”

The issues addressed in this Essay are whether, as a normative matter, moral rights should be applicable to a limited variety of works of authorship and if so, how the law can make viable distinctions.  The concept of originality in the copyright context furnishes a useful model for tackling the appropriate application of originality in the context of moral rights.