Ratio decidendi

Within the ratio decidendi, in addition to the focus on the antithesis to creativity, the ‘creative spark ... utterly lacking’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 362-363), there is a further, and complementary, concern with the requirement for a minimal degree of creativity and its absence from Rural’s directory.

This [Rural’s] is ‘selection’ of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.

(p. 362)

The direct linking to ‘copyrightable’ in ‘copyrightable expression’ (p. 362) indicates that ‘the modicum of creativity’ (p. 362) corresponds to the minimal degree of creativity required for copyrightability. The ‘the’ (p. 362) also implies a cross-reference, which can be read as a reference to, and thereby identity with, the earlier, ‘a modicum of creativity’ (p. 346). The current reference to ‘the modicum of creativity’ (p. 362) can, then, be assimilated to a minimal degree of creativity. Immediately prior to the conclusion of the ratio decidendi, alphabetical ordering is further characterized.

this time honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.

(p. 363)

‘[T]he’ (p. 363) implies a reference to the previous occurrence, to ‘some creative spark’ (p. 345). Meeting the requirements for a minimal degree of creativity is also indicated by the direct link to the requirements of the Copyright Act and the Constitution. ‘[T]he minimal creative spark’ (p. 363) can then be understood as corresponding to the level required and amount sufficient for a minimal degree of creativity. Two references within the ratio decidendi therefore correspond to the required level and sufficient amount for a minimal degree of creativity. The contrast, in both instances, with the absence of a minimal degree of creativity from Rural’s directory is consistent with the emphasis on the level required for a minimal degree.