A minimal degree of creativity
‘[A]t least some minimal degree of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) would include a minimal degree of creativity. A minimal degree of creativity disaggregates into a required level and sufficient amount ‘some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice’. (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) [citations omitted],
A minimal degree of creativity is then, first, constituted by a required level of creativity, and, second, by an amount of creativity at that level. The level of creativity required must be knowable, from its explicit specification as one of the requirements of a test for originality. ‘Originality requires ... that the author makes the selection or arrangement independently ... and that it display some minimal level of creativity. Presumably, the vast majority of compilations will pass this test’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 358-359).
The combination of level and amount for a minimal degree of creativity should also be discernible, to fulfill the requirements of the test.
The further references which can be assimilated to a minimal degree of creativity and which include the words creativity and creative link them only to terms which can be understood as corresponding to ‘minimal degree’, such as ‘modicum’, ‘component’, or ‘minimal spark’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 345, 346, 362, 363) (Box 3.2). Creativity and creative are not then further explicated or linked to semantically similar terms, within the references to a minimal degree of creativity. The different terms, creativity and creative, are revealed, on inspection, to be equivalent in their inclusion of creativity[1] but the predominance of creativity (five as contrasted with three mentions) implies a concern with the substantive phenomenon of creativity. Creativity would then be included in a minimal degree of creativity and would also be a mediated constituent of originality, from the inclusion of a minimal degree of creativity within originality (Figure 3.2).
Box 3.2 References which can be assimilated to a minimal degree of creativity
Original, as the term is used in copyright, means only ... that it [the work] possesses at least some minimal degree of creativity. ... The vast majority of works make the grade quite easily, as they possess some creative spark, (p. 345).
The Court explained that originality requires ... a modicum of creativity (p. 346).
the Court emphasized the creative component of originality (p. 346).
so long as they ... entail a minimal degree of creativity, are sufficiently original (p. 348).
Originality requires ... some minimal level of creativity (p. 358).
the Constitution mandates some minimal degree of creativity (p. 362).
the modicum of creativity necessary to transform mere selection into copyrightable expression (p. 362).
the minimal creative spark required by the Copyright Act and the Constitution. (p. 363).
Âs a constitutional matter, copyright protects ... more than a de minimis quantum of creativity (p. 363).
Note: The initial reference to the at least some minimal degree of creativity required for copyrightability is followed by further references which can be assimilated to it. They can be identified from their connection to the initial reference (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345), and from their linking to originality (pp. 345, 346, 348), to the Constitution (pp. 362-363), and to copyrightable expression (p. 362).
The references which can be assimilated to a minimal degree of creativity are given in bold and the primary evidence for their assimilation in italics.
- [1] The difference between the noun, creativity, and the adjective, creative, contains the possibility' of a significant difference, in their meaning or in the inclusion of creativity'. However, a closely subsequent reference to the first reference to a ‘minimal degree of creativity’, ‘some creative spark’ (p. 345), uses ‘creative’ as a term, implying an equivalence between creativity' and creative, within a minimal degree of creativity'. The variation between ‘creativity'’ (pp. 345, 346, 348, 362, 363) and ‘creative’ (pp. 345, 346, 363) can, in this and every' subsequent reference which can be assimilated to a minimal degree of creativity', be connected with the grammatical requirements of the surrounding phrase. The possibility' of a significant distinction is not, then, realized.
