May 06, 2020 Advance Sheet

Does Genius Steal?

The Copyright Act’s two approaches to creativity collide from a practical standpoint.

Robert E. Shapiro

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Devotees of Sesame Street songs will remember well an encounter between Bert and Ernie over Bert’s “Pat, Pat, Patty, Pat” jingle. As is his wont, Bert has been earnestly at work on a new song and is bursting with pride over a one-verse composition about patting your stomach. He thinks this will knock the socks off his bosom buddy Ernie, not to mention the other assembled Muppets. The response is disappointing; his audience finds the tune uninteresting, in fact boring. “That’s it?” one asks. Bert is befuddled and feels underappreciated, once again.

Ever the enthusiast, Ernie comes to the rescue, popping up with his own inspiration: “Maybe we should make it more complicated,” he cheerfully proposes. “More complicated????” Bert asks incredulously. Ernie then shows everyone what he means, as he has the Muppets join together to turn Bert’s few spare lines into a multipart choral masterpiece choreographed with whirling, twirling, and hopping around, while still leaving ample room for unlimited additions concerning all parts of the Muppet anatomy. Each listener is implicitly invited to add a favorite activity to the fun thereafter. Et, voilà!!! A delightful, and highly marketable, new tune for the Muppets’ repertoire.

Who is the creator of the ultimate song? Bert is the one who devised the original tune and wrote the basic lyrics. There’s no question Ernie built his magnum opus from what Bert did, copying both the melody and the rhythmic pattern. But is that where the creativity, and the credit, lies? Bert’s song was, quite simply, a dud. It was uninspired and uninteresting, destined to be dismissed and forgotten, a damp squib. Ernie’s memorable creation, by contrast, explored—invented, even—a range of previously unconsidered possibilities and expanded, elaborated, recreated, and reimagined the boring original into a stupendously entertaining composition of music and dance against which the original paled, if it was not subsumed altogether. Is Bert really entitled to any accolades at all? Is it even Bert’s song any longer? Isn’t it Ernie’s imaginative reworking, his genius that is key? Are they both somehow original creators or is one or the other entitled to all the glory?

Illustration by Max Licht

Illustration by Max Licht

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