Laws of creativity. The impact of legal systems on artistic practices and other creative endeavors

Course focus and approach:
This course aims at providing an in-depth discussion on the ways law regulates creativity and affects the content of works. Different regulations and case studies will be used to test how law affects creativity and to what extent.

Course description:
How does the law affect creativity? Is the law actually hindering creativity or is instead encouraging it? Are such impacts just quantitative or also qualitative? Are legal systems neutral to different forms of creativity or do they discriminate among forms? Answering these questions requires examining various branches of the law. The course focuses mostly in intellectual property law as the main legal tool for fostering creativity and innovation. Other areas of law such as freedom of expression, contract law, zoning law, and tax law will be also presented. Students will be provided with a theoretical overview of those areas to understand their rules and doctrines and how they affect creativity. The course will also offer the discussion of several case studies, including, among others, tattoos, memes, graffiti art, music sampling or content creativity in social media and other online platforms.

Learning objectives:
At the end of this course the students:

• Will be able to understand how law affects creativity in different ways (by limiting or by encouraging it) and along different dimensions (quantity and quality).
• Will be able to identify the main legal problems and disputes that affect creativity and the arts.
• Will be acquainted with basic legal categories used in the field of copyright law; contract law; and constitutional law.
• Will be able to understand how the law interacts with other factors (technology, social norms, psychology) and together have an impact on creativity and the arts.
  
  Course workload:
  Students are required to read a selection of texts and participate actively in the class. Students will have to write a final essay on one of the topics covered by the course, and take a midterm and a final exam.

Teaching methodology:
The course is mostly structured in lecture classes. Lectures will start with the theoretical introduction to the session subject, followed by discussions on different case-studies. Readings, provided by the professors will be used as a support for class discussion.

Assessment criteria:

•  Midterm exam: 30%
•  Final exam: 30%
• Essay paper: 30 %
• Class participation: 10%

INTRODUCTION
WEEK 1
Session 1. Interactions between law and creativity
1.1. Defining creativity
1.2. Creativity in context: Law, Technology, Social Norms, and Psychology
1.3. Creatio ex nihilo v. sequential creativity

SECTION I. CREATIVITY AND INTELLECTUAL PROPERTY
WEEK 2
Session 2. Intellectual Property Theories
2.1. Intellectual Property and Human Values
2.2. Intellectual Property as Reward
2.3. Intellectual Property as Incentive: Does Intellectual Property foster or hinder creativity?
2.3.1. The Incentive-Access Paradigm
2.3.2. Intellectual Property and benefits
2.3.3. Intellectual Property and costs
Session 3. Copyrights and Incentives
3.1. The impact of legal entitlements
3.2. Extrinsic motivations of creators
3.3. Intrinsic motivations of creators
3.4. The psychology of incentives
3.5. Endowment effect

WEEK 3
Session 4. Basics of Copyright law
4.1. Concept of work
4.2. Non-conventional subject matter
4.3. Originality
4.4. Term of protection
4.5. Formalities
Session 5. Who is an author?
5.1. Non-human authors
5.2. Artificial Intelligence and other machines
5.3. Performers and creativity
5.4. Improvisations and fixations: jazz, flamenco and folk music
5.5. Authors and the death: rules on post-mortem protections

WEEK 4
Session 5. Who is an author?
5.1. Non-human authors
5.2. Artificial Intelligence and other machines
5.3. Performers and creativity
5.4. Improvisations and fixations: jazz, flamenco and folk music
5.5. Authors and the death: rules on post-mortem protections
Session 7. Creativity and moral rights
7.1. Right of attribution
7.2. Right of integrity
7.3. Destroying works
7.4. Abandoning rights
Session 8. Creativity and exclusive rights
8.1. Right of reproduction and the dimensions of the notion of copy
8.2. Right of communication to the public: understanding creativity in dissemination
8.3. Right of distribution: innovating markets and discrimination of prices
8.4. Right to prepare derivative works: understanding transformative uses

WEEK 5
Session 9. Exceptions and limitations to exclusive rights
9.1. Purposes of exceptions and limitations
9.2. Protection of user rights
9.3. Case studies in borrowing:
- Parodies
- Sampling and remixing
- Memes
- Fanfictions
- Freedom of panorama
Session 10. Plagiarism and copyright infringement
10.1. The notion of substantial similarity
10.2. Plagiarism as a non-legal term
10.3 Different tests developed by courts
10.4. Tests in music cases
10.5. Tests in visual arts cases
10.6. Tests in literary works cases
10.7. Approppriationism

WEEK 6
Session 11. Midterm Exam

WEEK 7
Session 12.Creativity without copyright law
12.1. IP’s Negative Space Theory
12.2. Case studies:
- Tattoos
- Cuisine and cocktails
- Fashion
- Graffiti art
Session 13. Creativity and digital copyright
13.1. Digital Renaissance: how digital technologies have encouraged creativity
13.2. Amateurism and the problem of quality of works
13.3. Creativity and Big Data
13.4. Creativity and online platforms
Session 14. Creativity, copyright law and gender perspectives
14.1. Different levels of protection for female associated creativity?
14.2. Do valuable rights end up in the hands of men?
14.3. Differences in enjoying exceptions and limitations?

SECTION II. CREATIVITY AND FREEDOM OF EXPRESSION
WEEK 8
Session 15. Freedom of information and expression
15.1. Why should free speech be a fundamental right?
15.2. Democratic theories of freedom of speech
15.3. Autonomy-base theories
15.4. The marketplace of ideas
15.6. Tolerance
Session 16. Censorship of cultural creations
16.1. Prior restraints
16.2. Incitement to illegal activity and the arts
16.3. Obscenity laws and the arts
16.4. Racist and hate speech and the arts
16.5. Profanity, indecency and the arts

WEEK 9
Session 17. Defamation and image rights
18.1. Right to honour and Twitter
18.2. Image rights and Instagrammers
18.3. Publicity rights and Youtubers
18.4. Privacy and the arts
Session 18. Commercial speech and creativity in the advertising industry
19.1. The constitutional protection of advertising and other commercial messages
19.2. Activity-based regulation of advertising
19.3. Content-based regulation of advertising
19.4. Shocking ads
19.5. Sexism and advertising
19.6. Religion and advertising

SECTION III. CREATIVITY AND OTHER AREAS OF THE LAW
WEEK 10
Session 19. Creativity and contracts
20.1. Artists and performers in breach
20.2. Publishing agreements and incentives to creativity
20.3. Resale royalties for visual artists
20.4. Exclusivity and non-competes
Session 20. Creativity and the State: Legal Subsidies, Public art, zoning and construction laws
21.1. Public funding and the arts
21.2. Tax law and cultural sponsorship
22.1. Public sculptures
22.2. Murals and the law
22.3. Legal limits to architecture
Session 21. Final Exam