Beyond Eureka: What Creators Want (Freedom, Credit, and Audiences) and How Intellectual Property Can Better Give It to Them (By Supporting, Sharing, Licensing, and Attribution)

Colleen Chien*

In the theater of the courtroom or the rough and tumble arena of intellectual property policymaking, the day-to-day lives of creators are rarely presented. We often instead see one-dimensional vignettes, for example, “the new artist or band that has just released their [sic] first single and will not be paid for its success,” described on Taylor Swift’s Tumblr last summer when she initially withdrew from Apple’s music streaming service. While instructive, this description leaves out that Swift and other artists have long relied on “free play” mediums like radio and, more recently, YouTube to develop, not cannibalize, their audiences and followers. Such accounts ignore both context and the complex relationship between what creators want and need and what intellectual property provides. These are a few of the reasons that Jessica Silbey’s book, The Eureka Myth, is both refreshing and important. In it, she draws from over fifty interviews, completed over half a decade, with an array of creative professionals, including filmmakers, photographers, sculptors, journalists, novelists, musicians, composers, hardware and software engineers, biologists, publishers, computer scientists, and business executives. Silbey asked them about their work, the challenges they faced, why and how they overcame professional obstacles, joys they experienced, and what was important to them. And at the end of each interview, she asked them what they thought about intellectual property.

* Associate Professor of Law, Santa Clara University School of Law and former Obama Administration Senior Advisor, Intellectual Property and Innovation, White House Office of Science and Technology Policy. I thank Robert Merges, Paul Heald, Eric Goldman, Jeanne Fromer, Petra Moser, Jorge Contreras, Michael Risch, Ted Sichelman, David Schwartz, Tyler Ochoa, Brian Love, Pam Samuelson, and Jessica Silbey for helpful discussions, and the editors of the Michigan Law Review, in particular Jenny Stone and Will Martin, for their patience and helpful edits.

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