Raw Materials and the Creative Process

Abstract

There has been a marked shift in how intellectual property laws address free speech, creative expression, and artistic practices that involve extensive copying. Over the past decade, courts increasingly have shielded authors from claims of infringement if they used a preexisting image or likeness as “raw material” for a new work. Both copyright law’s fair use doctrine and right of publicity law’s First Amendment defense have coalesced around this raw material inquiry, and similar notions of cultural raw material long have pervaded IP scholarship.

This Article is the first to challenge the emerging “raw material” framework, and it uncovers a range of normative and conceptual shortcomings. First, the growing body of raw material case law has unequally expanded artists’ ability to freely copy from the world around them: famous artists have been shielded, but lesser-known artists have not. Second, in distinguishing between a creative work and its raw materials — between “raw” and “cooked” imagery — courts have drawn from a range of analogous social hierarchies. For instance, courts repeatedly associate “raw material” with appropriated images of women and racial minorities. Lastly, the raw material framework distorts the creative practices it aims to promote; artists often appropriate familiar imagery not because it is “raw,” but because it offers a rich source of shared cultural meaning. This Article puts forward a set of alternative approaches that situate questions of IP infringement more concretely in the actual creative processes at issue.

Keywords: copyright, fair use, right of publicity, creativity, raw materials, free speech