Basis for the requirement for a minimal degree of creativity

The basis for the requirement for a minimal degree of creativity as part of originality is then found in the Constitution. The Constitution had authorized Congress to ‘secure for limited Times to Authors ... the exclusive Right to their respective Writings’. Crucial terms in this clause, authors and writings, were considered in two late-nineteenth-century decisions by the Supreme Court.

The first such decision, The Trade-Mark Cases (Trade-Mark, 1879), was concerned with the ‘writings’ in the constitutional clause.

the Court addressed the constitutional scope of ‘writings’. For a particular work to be classified ‘under the head of writings of authors’, the Court determined, ‘originality is required’. The Court explained that originality requires ... a modicum of creativity

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 346)

‘[A] modicum of creativity’ (p. 346) is required for originality. ‘[R]equires’ (p. 346) can be understood to be semantically included in ‘means’ in the initial introduction of a minimal degree of creativity by ‘[o]riginal means only’ (p. 345). A modicum of creativity is then assimilatable to a minimal degree of creativity. Modicum would normally be understood as a small amount, possibly of some good or abstract quality. It is then consistent with the requisite level and sufficient amount of creativity at that level, required for a minimal degree of creativity. The decision then immediately quotes from the cited judgment to give the basis for the requirement for a modicum of creativity in the constitutional reference to writings.

[W]hile the word writings may be liberally construed ... it is only such as ... are founded in the creative powers of the mind ... which are to be protected.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 346) [emphasis in original]

The reference to ‘a modicum of creativity’ (p. 346) syntactically parallels ‘creative powers of the mind’ (p. 346) in the quoted decision and is semantically cognate with it. A modicum of creativity can then be understood as developed by the creative powers of the mind. The ‘creative powers of the mind’ (p. 346) as implied by writings in the Constitution, then, forms one part of the basis for asserting the requirement for a minimal degree of creativity.

2 The formulation, modicum of creativity', has been used in some subsequent discussions to refer to the creativity' requirement articulated by' Feist, warranted, to some extent, by its presence in the decision and enabled by its capacity' to stand alone as a reference. However, ‘minimal degree of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) is the formulation initially' used, is directly' explicated, and occurs more frequently' in the decision. It therefore has a claim to be the preferred formulation and has been adopted here.

The second and subsequent late-nineteenth-century decision, Burrow-Giles (1884), was concerned with authors in the constitutional clause.

the Court distilled the same requirement from the Constitution’s use of the word ‘authors’.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 346)

‘[T]he same requirement’ (p. 346) must be understood to refer to the requirement for originality asserted in connection with immediately previously cited decision, The Trade Mark Cases. The judgment continues.

As in The Trade-Mark Cases, the Court emphasized the creative component of originality.

(p. 346)

‘As’ (p. 346) indicates that the ‘creative component’ (p. 346) must be assimilatable to the previously cited ‘a modicum of creativity’ (p. 346) and to a minimal degree of creativity.

Modern cases and commentaries are cited to confirm the continuity from nineteenth-century judgments.

The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains the touchstone of copyright protection today. ... It is the very ‘premise of copyright law.’ ... Leading scholars agree on this point. As one pair of commentators succinctly puts it: ‘The originality requirement is constitutionally mandated for all works.’ ... ‘originality is a statutory as well as a constitutional requirement’.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 347) [citations omitted]

The ‘originality requirement’ (p. 347) would include a minimal degree of creativity and ‘touchstone’ (p. 347) can then be understood to include the requirement for a minimal degree of creativity.

Different aspects of the Constitutional clause, writings and authors, are, then, adduced as the basis for the requirement for a minimal degree of creativity, by the citation of the nineteenth-century cases, and there is a continuity to current understandings.