Introduction of a minimal degree of creativity

A minimal degree of creativity is introduced as part of a passage concerned with the meaning of original.

Original ... means only that the work ... possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be. Originality does not signify novelty.

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

[citations omitted]

‘To be sure’ (p. 345) indicates a continuity from ‘some minimal degree of creativity’ (p. 345) and the subsequent transition to considering another aspect of originality, the absence of a requirement for novelty - ‘Originality does not signify novelty’ (p. 345) - implies the end of the continuity indicated. The passage from ‘[T]o be sure’ to ‘it might be’ (p. 345) can then all be read as concerned with a minimal degree of creativity.

‘To be sure’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) then applies to all of the subsequent treatment of a minimal degree of creativity, in the passage. It implies both a strong degree of confidence in the statements and a basis in established practice for that confidence. The syntactic parallelism of the subsequent passage - ‘the requisite level of creativity is extremely low; even a slight amount will suffice’ (p. 345) [citations omitted] - with the immediately previous ‘some minimal degree of creativity’ implies a direct correspondence between the two passages. ‘[E]xtremely low level’ and ‘slight amount’ (p. 345) can then be understood as corresponding to ‘minimal degree’ (p. 345). ‘Extremely low’ (p. 345) and ‘slight’ (p. 345) semantically correspond to ‘minimal’ (p. 345) and level and amount must then correspond to degree. The mention of level before amount implies that amount must be understood as amount at the given level. ‘[Requisite’, qualifying level, and ‘suffice’, governed by amount, indicates that the necessary level must exist in sufficient amount, to constitute to a minimal degree of creativity. A minimal degree of creativity then immediately disaggregates into level and amount and is constituted by an ‘extremely low’ (p. 345) requisite level and a sufficient ‘slight amount’ (p. 345).

The concern then turns to the proportion of works with at least a minimal degree of creativity.

The vast majority of works make the grade quite easily

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

‘The vast majority of works’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) indicates a proportion of works. ‘Works’ (p. 345) can be understood as referring to works conceived as separate entities. ‘[W]orks’ (p. 345) would include compilations. ‘The’ in ‘the grade’ indicates reference to something immediately previously mentioned and ‘make the grade’ (p. 345) implies meeting the conditions for a minimal degree of creativity. ‘[G]rade’ (p. 345) must then be understood as referring to ‘some minimal degree of creativity’ (p. 345). Grade is more cognate in its own meaning with level than amount and thereby emphasizes the difference in level, in accord with the priority of mention and of being previously given to level. ‘[Q]uite easily’ in ‘[m]ake the grade quite easily’ (p. 345) implies a significant and readily discernible interval between the level and amount at the level of creativity embodied in the vast majority of works and the required level and sufficient amount. A proportion of works not meeting the grade could be understood to be logically or arithmetically implied, although it is not explicitly stated.

The condition by which works make the grade is then given.

as they possess some creative spark

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

‘[S]ome creative spark’ (p. 345) in the continuation from ‘grade’ (p. 345) cannot directly correspond to ‘grade’ (p. 345), as ordinary language usage would not normally allow something possessing itself. However, the possession of some creative spark enables a work to make the grade. ‘[S]ome creative spark’ (p. 345) must then be understood as the combination of required level and sufficient amount of creativity which constitutes minimal degree of creativity. ‘[S]ome’ (p. 345) can be understood as indicating a certain level and amount.

‘[S]park’ in ‘creative spark’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) can be understood as an initiator of a creative process. It corresponds to the judgment’s emphasis on progress as the constitutionally mandated purpose of copyright.

The primary objective of copyright is ... ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 349-350)

[citations omitted]

‘[S]park’ (p. 345), understood as initiating a process, is then consistent with a central theme of the judgment, the insistence on progress as the purpose of intellectual property.

Spark as an initiator, in the opening reference to a minimal degree of creativity (p. 345), can be primarily understood in a metaphorical, rather than immediately material, sense. The metaphorical sense of spark does have a material basis, as a spark of fire, which has a hitherto unexplored relevance to a minimal degree of creativity. The significance of the material basis for spark can then be raised to consciousness. A material spark combines illumination and duration in a single entity, with illumination usually perceived before duration, in ordinary human experience. Illumination can be understood as corresponding to level and duration to amount. The level of illumination of a spark can range from the very low to the highest conceivable level, from that obtainable from striking flints together to that conferred by lightning. The possibility of creativity at the very highest level which was implied by the applicability of a minimal degree of creativity to all works and allowed for by the introductory reference to ‘at least some minimal degree of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) is thereby metaphorically expressed. The occurrence of illumination before duration corresponds to the priority of level to amount in the decision, and also indicates the possibility of interpreting amount as duration. Duration of a material spark is necessarily brief, corresponding to ‘slight’ in a ‘slight amount’ (p. 345). ‘[S]park’ (p. 345), then, when considered in its material sense, combines level and amount in a single entity, gives priority to level, allows for very low to unlimited levels, and compels a slight amount. Spark, then, in the sense which corresponds to its material basis, then has analogies to the division of a minimal degree into level and amount at that level. The priority of mention and emphasis given to level over amount has been further confirmed by the implications of the material basis of spark.¹

1 Significant antecedents to spark as initiating a process which confirm its metaphorical sense but also explicitly contain its material basis can be found in Romantic and classical sources. A highly significant Romantic instance of the use the term, spark, occurs in Mary Shelley’s account of the monster given life by Frankenstein.

With an anxiety that almost amounted to agony, I collected the instruments of life around me that I might infuse a spark of being into the lifeless thing that lay at my feet. It was already one in the morning; the rain pattered dismally against the panes, and my candle was nearly burnt out, when, by the glimmer of the halfextinguished light, I saw the dull yellow eye of the creature open; it breathed hard, and a convulsive motion agitated its limbs.

(Shelley, 1818/1998, pp. 38-39) [emphasis added]

The terms which follow and qualify ‘some creative spark’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) - ‘no matter how crude, humble or obvious it might be’ (p. 345) - are consistent in meaning with the combination of' ‘extremely low’ (p. 345) level and ‘slight’ (p. 345) amount of creativity which constitute a minimal degree of creativity and readily applicable to level and amount in combination. They conclude the introductory explication of ‘at least some minimal degree of creativity’ (p. 345)

The passage immediately following the introduction of ‘at least some minimal degree of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) can then be read continuously and as a whole. A minimal degree of creativity is constituted by a required, ‘extremely low’ (p. 345), level and a sufficient ‘slight’ (p. 345) amount of creativity at that level. The degree of confidence with which works with a minimal degree of creativity can be discerned, the basis for that confidence in established practice, and the proportion of works expected to have a minimal degree of creativity, are all indicated. Priority of mention and emphasis of meaning is given to level over amount. The passage as a whole can be understood as an explication of‘at least some minimal degree of creativity’ (p. 345).

The monster is made from dead human parts and brought to life by intervention from a living human. ' [S|park’ (Shelley, 1818/1998, p. 38) is used in both a directly material sense, as a spark of electricity, with a strong and explicit metaphorical connotation, of infusing life into inert thought or matter, reminiscent of the divine infusing of life into human forms in Genesis.

A material sense of spark emerges strongly from another well-known Romantic reference, by Coleridge on the actor Edmund Kean. ‘Kean is original; but he copies from himself. His rapid descents from the hyper-tragic to the infra-colloquial, though sometimes productive of great effect, are often unreasonable. To see him act, is like reading Shakespeare by flashes of lightning. I do not think him thorough-bred gentleman enough to play Othello’ (Coleridge, 1835, p. 44). ‘[FJlashes of lightning’ (Coleridge, 1835, p. 44) is semantically cognate with spark, although without spark as a term. The formulation ‘flashes of lightning’ (Coleridge, 1835, p. 44) carries some literal and material, as well as metaphorical, implications. Some inconvenience in reading is implied, by the literal implication of ‘flashes of lightning’ and the insight given by Kean is transitory - ‘not ... thorough-bred gentleman enough to play Othello’ (Coleridge, 1835, p. 44) - like a material spark, with its brief duration (Coleridge, 1835, p. 44). The material basis for the metaphorical sense then emerges strongly.

A significant classical instance occurs in Plato’s expression of the value of spoken dialogue compared to the dissemination of thought by written language, without immediate dialogue, for the development of understanding, in the Phaedrus. ‘It is only when all these things, names and definitions, visual and other sensations, are rubbed together and subjected to tests in which questions and answers are exchanged in good faith and without malice that finally, when human capacity' is stretched to its limit, a spark of understanding and intelligence flashes out and illuminates the subject at issue’ (Plato, 400 BC/1973, p. 140) [emphasis added]. In this passage, ‘spark’ is used in a metaphorical sense, ‘a spark of understanding’ (p. 140). Traces of a material sense, as a physical spark of fire, with reference both to the production of a spark, ‘things ... are rubbed together’ (p. 140), and its effects, ‘flashes out and illuminates the subject at issue’ (p. 140), is also discernible.

In both the Romantic and the classical instances, the spark has a communicative function, is humanly made, and creates the possibility' of further growth, by initiating a process.