Against Creativity

29 Pages Posted: 29 May 2016 Last revised: 28 Jul 2017

See all articles by Brian L. Frye

Brian L. Frye

University of Kentucky - College of Law; Dogecoin DAO Legal Scholarship Page; Rug Radio DAO Grifting Division

Date Written: May 27, 2016


According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement. The creativity requirement should be abandoned because it is irrelevant to the scope of copyrightable subject matter and distorts copyright doctrine by encouraging inefficient “creativity rhetoric.” The purpose of copyright is to encourage the production of economically valuable works of authorship, not creativity.

Keywords: copyright, copyright theory, creativity, aesthetic nondiscrimination

Suggested Citation

Frye, Brian L., Against Creativity (May 27, 2016). 11 NYU Journal of Law & Liberty 426 (2017), Available at SSRN: or

Brian L. Frye (Contact Author)

University of Kentucky - College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States


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