Legal Memorandum: Basis for Granting a Copyright

Issue: Under federal intellectual property law, when will the aesthetic aspects of a utilitarian article be deemed to lack sufficient creativity to be granted a copyright?

Area of Law: Intellectual Property Law
Keywords: Copyright; Work's originality, sufficient creativity; Aesthetic aspects of a utilitarian article
Jurisdiction: Federal
Cited Cases: 188 U.S. 239
Cited Statutes: None
Date: 10/01/2004

           The fundamental basis of copyright protection is a work’s originality.  Originality has two components: independent creation and a certain minimum amount of creativity.  Feist Pub’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991).  The Copyright Office uses this standard when it considers whether a work is copyrightable. 

The requisite quantum of creativity necessary for copyright is very low.  The Supreme Court has stated, however, that there can be no copyright in works in which “the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”  Feist, 499 U.S. at 359.  And, a work that reflects an obvious or unoriginal use of common elements fails to meet the low standard of minimum creativity required for copyrightability.  See id. at 362-63.  An example would be the alphabetical listings in the white pages of telephone books which the Supreme Court characterized as “garden variety . . . devoid of even the slightest trace of creativity.”  Id. at 362.  Nothing in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903), a pre-Feist case, changes the current rule as it is stated in Feist.

Even before Feist was decided, Copyright Office registration practices followed settled precedent and recognized that some works of authorship contain only a de minimis amount of authorship and, thus, are not copyrightable.  See Compendium of Copyright Office Practices, Compendium II, § 202.02[a] (1984).  With respect to pictorial, graphic and sculptural works, Compendium II states that a “certain minimal amount […]

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