requires some amount of _content_ to begin with, to which the author adds a
_creative_component,_ which, for a few, is then _published_ and _distributed._

/tab\/tab\CONTENT/tab\/tab\

The content an author must draw upon varies with the "writing." Some
part is new -- this is the part we think of as "creative." But as many have ar-
gued, we've come to exaggerate the new and forget that a great deal in the
"creative" is actually old.[7-2] The new builds on the old, and hence depends,
to a degree, on access to the old. Academics writing textbooks about poetry
need to be able to criticize and hence, to some degree, use the poetry they
write about. Playwrights often base their plays upon novels by others. Novel-
ists use familiar plots to tell their story. Historians use facts about the history
they retell. Filmmakers retell stories from our culture. Musicians write
within a genre that itself determines how much of the past content it needs
to be within that genre. (There is no such thing as jazz that does not take
from the past.) All of this creativity depends in part on access to, and use of,
the already created.

In our present legal regime, some of this content is free; some is con-
trolled. A poet has a copyright on his or her poetry. Others cannot simply
take and reproduce it without the copyright holder's permission. The same
with plays and novels: A play that is close enough to the plot of a novel is
a derivative work. Copyright law gives the copyright holder control over
these derivative works. Musical chords cannot be controlled; the design of
public buildings cannot be copyrighted. These bits of content in these tra-
ditions are free, even if the control created by copyright is strong.

But this control is still limited -- indeed, it is _constitutionally_ limited.
While a poet or author has the right to control copies of his or her work, that
right is limited by the rights of "fair use." Regardless of the will of the own-
ers of a copyright, others have a defense against copyright infringement if
their use of the copyrighted work is within the bounds of "fair use." Quoting
a bit of a poem to demonstrate how it scans, or making a copy of a chapter
of a novel for one's own critical use -- these are paradigmatic examples of
use that is "fair" even if the copyright owner forbids it.

A similar limitation protects the historian. For content to be controlled, it
must be "creative." Facts on their own are not "creative." As the Supreme
Court has said, "[T]he sine qua non of copyright is originality. To qualify for
copyright protection, a work must be original to the author... [But] facts

[[105]]

p104 _ -chap- _ toc-1 _ p105w _ toc-2 _ +chap+ _ p106

v?