There's No Such Thing as Independent Creation, and It's a Good Thing, Too

39 Pages Posted: 12 Mar 2022

See all articles by Christopher Buccafusco

Christopher Buccafusco

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: March 9, 2022

Abstract

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Essay argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist.

Because the independent creation doctrine lacks legitimacy, it has become a site of legal privilege and bias. Copyright law’s treatment of independent creation has favored some creators’ claims at the expense of others, privileging plaintiffs, older creators, and wealthier creators. These biases distort the law’s attempt to optimally regulate cultural production. This Essay offers several proposals for addressing these concerns, from rebalancing legal doctrines to a more radical solution: the wholesale jettisoning of independent creation. Copyright law does not need the independent creation doctrine, and it would be better off without it.

Keywords: copyright, creativity, copying, independent creation, neuroscience, psychology, cognitive, memory, music, privilege, rhetoric

Suggested Citation

Buccafusco, Christopher J., There's No Such Thing as Independent Creation, and It's a Good Thing, Too (March 9, 2022). William & Mary Law Review, 2022, Available at SSRN: https://ssrn.com/abstract=4053743 or http://dx.doi.org/10.2139/ssrn.4053743

Christopher J. Buccafusco (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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