Creativity and Copyright

Creativity is important socially and aesthetically. It also is required for a work to be copyrightable.

The Compendium of U.S. Copyright Office Practices is the administrative manual of the Register of Copyrights. The Compendium concerns Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations.

Copyrightability – Compendium Section 302

Section 302 of the Compendium discusses the requirements for a work to be copyrightable (emphasis added).

In determining whether a work is copyrightable, the Office analyzes questions such as:

• Is the work eligible for copyright protection in the United States?
• Has the work been fixed in a tangible medium of expression?
• Was the work created by a human author?
• Does the work constitute copyrightable subject matter?
• Is the work sufficiently original?
  • Was the work independently created?
  • Does the work possess at least some minimal degree of creativity?

If the answer to all of these questions is “yes,” the work is copyrightable and the claim may be registered, as long as there are no other issues in the registration materials that raise questions concerning the claim and as long as the other legal and formal requirements have been met.

Creativity – Compendium Section 308.2

Section 308.2 of the Compendium cites various cases to explain the creativity requirement (citations omitted below).

A work of authorship must possess “some minimal degree of creativity” to sustain a copyright claim.

“[T]he requisite level of creativity is extremely low.” Even a “slight amount” of creative expression 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.’”

An author’s expression does not need to “be presented in an innovative or surprising way,” but it “cannot be so mechanical or routine as to require no creativity whatsoever.” A work that it is “entirely typical,” “garden-variety,” or “devoid of even the slightest traces of creativity” does not satisfy the originality requirement. “[T]here is nothing remotely creative” about a work that merely reflects “an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.” Likewise, a work “does not possess the minimal creative spark required by the Copyright Act” if the author’s expression is “obvious” or “practically inevitable.”

Although the creativity standard is low, it is not limitless. “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.”

Creativity – Real-world Examples

I have answered several Quora questions that pertain to creativity and copyright.

• Is there a Copyright on single lines of a song? – Each line of a song must be examined to determine whether there is sufficient creativity to merit copyright protection.
• Are example sentences in dictionaries copyrighted? – Similarly, each example sentence in a dictionary would need to be examined.
• If someone were to create a computer program that generated every possible combination of musical notes, would they own the copyright to all that music (aside from music already composed)? – Here, the answer is clear. Computer production of every note combination would be purely mechanical, thus the work would not be copyrightable.

See all posts about copyright.

Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.