6 - How to Take Creativity Seriously

Summary

This chapter details what a better understanding of the creative process should mean for copyright law. Instead of continuing to avoid any rigorous analysis of creativity, courts should investigate authorial motivation and solicit expertise to help diagnose the presence of the required “creative spark.” These changes would bolster copyright’s role in incentivizing the production of creative works while avoiding awards of copyright to unoriginal artworks. The chapter also explains how to recalibrate design patent law in light of what we understand about audience perception of design. The trier of fact should examine whether a design choice makes the design easier or harder for audiences to process. Design choices to be simpler, more prototypical, or more congruous are already likely sufficiently rewarded by consumer choices in the marketplace and should be presumed to lack the originality needed for design patent protection. Through a series of visual examples from actual design patent cases, the chapter explains how, by analyzing the effect of a design choice on visual processing fluency, courts can stop treating all design differences the same.