Narrative motif

Brer Rabbit has recognized the briar patch as home, begun to recognize his locale, and has found a progressive structure within an apparent maze. Like Brer Rabbit, we have used emotional intelligence, close observation, and intuition, to adapt to more powerful forces, emblematic of the Feist decision and of the work’s approach.

Conclusion

Establishing the conceptual structure of the decision has then revealed the precise sense in which creativity is significant and fundamental. Its significance derives from its incorporation into the originality and the minimal degree of creativity, directly required for copyright. It is fundamental in the sense of being a primitive term, not further disaggregated. It would then be open to elucidation, but not to further decomposition, in Wittgenstein’s sense of elucidation. ‘The meaning of primitive signs can be explained by elucidations. Elucidations are propositions which contain the primitive signs. They can, therefore, only be understood when the meaning of these signs are already known’ (Wittgenstein, 1922/1981, § 3.263). We have then addressed the preliminaries to our journey, by constructing a map for it.

Creativity in the decision: chapter summary

Originality is required for copyright and the originality requirements apply to all works, including, but not limited to, compilations. As a logical formulation, the requirement for originality could be represented as

t copyright <-> originality

The meaning of originality for copyright is given once only in the decision. It must be received as exhaustive and authoritative.

Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345)

A work is original, then, if and only if, it has at least some minimal degree of creativity and is independently created. In formal logic, this would read.

Original ((at least some minimal degree of creativity) A (independently created))

We then have an authoritative understanding of originality and can turn to its components, a minimal degree of creativity and independent creation.

A minimal degree of creativity would include creativity. From inclusion we can understand that if there is a minimal degree of creativity then there is creativity, or

A minimal degree of creativity creativity.

Independent creation is parenthetically explicated at its introduction, as ‘opposed to copied from other works’ (p. 345). A minimal degree of creativity immediately disaggregates into a level of creativity and an amount of creativity at that level but is not further explicated.

A minimal degree of creativity is differentiated from ‘the creative spark ... utterly lacking or so trivial as to be virtually nonexistent’ (p. 358).

There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. ... Such works are incapable of sustaining a valid copyright.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 359)

The ‘creative spark utterly lacking or so trivial as to be virtually nonexistent’ (p. 358) can be understood as contiguous with a minimal degree of creativity, which also includes creativity, or,

A minimal degree of creativity <-» ~ (creative spark utterly lacking or so trivial as to be virtually nonexistent)

A minimal degree of creativity is then differentiated from its neighbor.

The ‘creative spark ... utterly lacking or so trivial as to be virtually nonexistent’ (p. 358) contains a further distinction, between ‘utterly lacking’ and ‘so trivial as to be virtually nonexistent’ (p. 358). The ‘creative spark ... trivial as to be virtually nonexistent’ (p. 358) can be understood as corresponding to a real level and amount of creativity. As such, it would include creativity, or

creative spark so trivial as to be virtually nonexistent creativity creativity

The ‘creative spark ... utterly lacking’ (p. 358), by contrast, excludes creativity. The ‘creative spark ... utterly lacking’ (p. 358) can also be understood to imply creativity as its own antithesis.

Creativity itself is not assigned a meaning specific to copyright, decomposed into further terms, nor connected to semantically similar or overlapping terms. The implication of creativity from ‘the creative spark ... utterly lacking’ (p. 358) then emerges as the only way of generating an understanding of creativity, from within the decision. At this stage, we can concentrate on the negative aspect of this implication, that a work is not creative, if and only if, the creative spark is utterly lacking, or

~ creativity (creative spark utterly lacking)

Conditions for an understanding of creativity can be generated from the inclusion of creativity within originality, in a minimal degree of creativity, and in the ‘creative spark ... so trivial as to be virtually nonexistent’ (p. 358). It must apply to all works, extend from the lowest to the highest possible level, give rise to level and amount in combination, be knowable, and be consistent with ordinary discourse.

Our task is to generate an understanding of creativity, from the creative spark utterly lacking, which meets these conditions.

We can use the map to navigate carefully through the decision. The intended journey is graphically represented as a map and progress along our journey will be marked throughout the work (see Figure 3.6).

We must now follow the initial stages of the path discerned, beginning with a fuller understanding of the ‘creative spark ... utterly lacking’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362), of the antithesis to creativity, which is extensively characterized in the judgment and which is located at the bottom right of the figure showing the place of creativity in the decision (see Figure 3.6).

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