Law and the Cycle of Creativity
/I Introduction
Humans are inherently creative beings. We exist to be productive, whether by way of producing art, or other products or services in other disciplines.
Creators create because they are compelled to do so. Often even without pay or fair compensation for doing so.
To be made whole, the creator is compelled to engage in the Cycle of Creativity.
It is typically the result of an overwhelming passion and for the love and service of the act of creating itself.
If the cycle is not completed, the creator’s creation is like the tree in the forest that falls, but no one is around to hear it. It seems to not exist.
A creator may be at different stages of the cycle with one, or many works, simultaneously.
Once the cycle is completed, the cycle repeats. The joy is in the act of creating and engaging in the cycle of creativity.
Here’s what I’ve experienced by participating in and have learned about the creative process. It’s what I call the Cycle of Creativity.
II The Cycle of Creativity
Conception - start with an idea or concept and follow that initial inspiration where it leads.
To realize a concept it requires:
Commitment - following through on a concept so that it is realized through the process of creating.
Creation - the creative act of creating. Like riding a bull until you’re thrown off, as Bob Dylan has said.
Creating involves:
a. Craft - using your existing and acquired skills by actively committing to create and to aid in the creation of the work.
b. Collaboration - most art is not created alone. For example, even if there is a single composer of a piece of music, the composer is building on the musical works and composers that have gone before them. The composer is “standing on the shoulders of giants”.
c. Control - over the creation of the work.
d. Completion - seeing the work through to partial or fully realized completion. Sometimes it happens in minutes. Other times it occurs many years and in some cases, what was thought to be a completed creation is re-worked, revised and revisited many times.
e. Choice(s) - the who, what, how, when and why of the creation - more or less choice?
Communication - Communication to an audience of one or many is integral to complete the cycle. When the creator thinks the work is complete, you communicate by sharing the work, through performing, a demonstration or exhibition, for example.
Consumption - the audience or consumer, digests the work and consumes it either through listening, performance or exhibition of it, for example.
Consumption and its impact can vary based on:
a. Context - which is closely related to the consumption and communication of a work. How and where is the work shared? If it is music, for example, is it performed in a concert hall, or by busking on the street? The work will be communicated and therefore consumed differently and have a different impact in different contexts.
b. Community - who are you sharing it with and where? For example, performing music inside a religious institution, like a church, in Canada, for its congregation that understands English of a work in English or performing the same music to someone that does not understand English out doors?
Commentary / Criticism - both good and bad, useful and not useful. Commentary can include adulation or simply mundane commentary such as I like it or I don’t like it. Criticism and commentary can take place at any and all stages of the Cycle. It can be helpful, if constructive. It can provide feed back to the creator and become part of the Cycle. Or it can be hurtful, or ignored. You, the creator. You decide.
III Legal aspects of the Cycle of Creativity
There are legal aspects and legal issues that can arise at any and all stages of the Cycle of Creativity. For example, beginning with the concept, is the basic idea or concept an infringement of someone’s rights, most notably copyright? For example, if you are a visual artist creating a collage, are you substantially copying a copyright protected image from another source? If so, a license is required. Or other intellectual property rights such as patents may be present, if the creation is an invention that might be protectable by patent law. Perhaps you’re creating a local that could be a trademark and protectable under trademark laws, or designing a product that has a particularly pleasing aesthetic shape that may be protectable under the laws of industrial design.
The commitment involved in following through on the concept to either partial or full completion and the act of creation itself may require a number of licenses, consents, releases and contracts with respect to the execution of the concept. This could include, for example, collaboration agreements with other co-creators. Or for example, on a site specific visual art installation, consent from a municipality or corporation to install the work on the specific property on which the installation is to take place.
Does the craft involved in the creation also require a license? For example, if you’re following copyright protected guidelines that are the property of another, a license would be necessary to complete the work.
The act of communicating also often requires a number of consents and releases. For example, if public performance of music is involved, a public performing rights license is required from the applicable public performing rights society for the music. Is the creation to be broadcast over the Internet or elsewhere? That raises a further question regarding the act of communication and the legal aspects of that communication.
Is there anything in the work might be problematic? For example, copyright protected material that has not been licensed and therefore issues concerning content of the content that might be objectionable? For example, the laws of defamation, libel, slander may be relevant concerning the contents of the work. Is there content in the creation that might be considered objectionable on the grounds of obscenity?
There also may be the requirement for licenses depending on the context and community to which the work is to be communicated and by which it is consumed.
The criticism and or commentary regarding the creation also has legal implications. It may go too far and infringe the rights of the creator under the laws of defamation or privacy, for example.
The above are a few conjectures concerning legal issues that may arise concerning the Cycle of Creativity. They are not an exhaustive list. In any specific situation where legal issues arise, skilled legal advice should be sought.