For all of the abstraction that drives intellectual property law, the conversation can sure turn earthy.
Whether gardeners create copyrightable works is a question that produced a provocative opinion earlier this year in Kelley v. Chicago Park District.
The musician/producer Brian Eno has a new talk up here about creators as gardeners, as part of a series on “the information garden.” Eno:
[M]y feeling has been that the whole concept of how things are created and organized has been shifting for the last 40 or 50 years, and as I said, this sequence of science as cybernetics, catastrophe theory, chaos theory and complexity theory, are really all ways of us trying to get used to this idea that we have to stop thinking of top-down control as being the only way in which things could be made.
We have to actually lose the idea of intelligent design, because that’s actually what that is. The top-down theory is the same as intelligent design. And we have to actually stop thinking like that and start understanding that complexity can arise in another way and variety and intelligence and so on. So my own response to this has been, as an artist, to start to think of my work, too, as a form of gardening. So about 20 years ago I came up with this idea, this term, ‘generative music,’ which is a general term I use to cover not only the stuff that I do, but the kind of stuff that Reich is doing, and Terry Riley and lots and lots of other composers have been doing.
And essentially the idea there is that one is making a kind of music in the way that one might make a garden. One is carefully constructing seeds, or finding seeds, carefully planting them and then letting them have their life. And that life isn’t necessarily exactly what you’d envisaged for them. It’s characteristic of the kind of work that I do that I’m really not aware of how the final result is going to look or sound. So in fact, I’m deliberately constructing systems that will put me in the same position as any other member of the audience. I want to be surprised by it as well. And indeed, I often am.
What this means, really, is a rethinking of one’s own position as a creator. You stop thinking of yourself as me, the controller, you the audience, and you start thinking of all of us as the audience, all of us as people enjoying the garden together. Gardener included.
I am reminded of Mario Biagioli’s interpreting the ideas of Edward Young, in Conjectures on Original Composition (1759), and of Biagioli’s argument that the logic of land and cultivation has always been a part of IP discourse. Modern “cultural environmentalism” has ancient roots. As it were.
(Bonus track: Read Dan Kevles’s fascinating recent article, How to Trademark a Fruit.)