Living Gardens, Living Art, and Living Tradition

Abstract

Copyright protection in the United States begins from the moment of a work’s “creation.” Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such protection. Not much has been said or written about how copyright should address such fluid works of authorship that are, by their very essence, continually in progress or otherwise subject to change on an ongoing basis. This dearth of discussion is particularly surprising given that law professors spend a majority of their time writing articles and books that are constantly in a state of flux. Even after publication, many wish to attempt to revise prior works, and some actually do so in the form of sequel publications!

This Essay initially discusses the protection of fluid works from the standpoint of copyright law in the United States. By way of comparison, this Essay then examines the philosophy of human creativity deriving from the Jewish tradition. It argues that this ancient yet living tradition can inform our copyright policy concerning how we define eligible works of authorship and determine their appropriate scope of protection.

Keywords: copyright, moral rights, Jewish law, Jewish tradition