A Blog By Any Other Name

Copyright Law

I felt it would be appropriate for my first post to explain the title of my blog and what I hope to accomplish through my posts.

The phrase “a modicum of creativity” originates in United States copyright law. In the 1991 Supreme Court case of Feist Publications v. Rural Telephone Service (499 U.S. 340), Justice O’Connor delivers the opinion of the Court in a copyright dispute over telephone directory listings. The Feist case required the Court to consider whether the telephone directory listings at issue were copyrightable – either independently or in the way in which they were arranged.

Feist illustrates one of the few hurdles that a work seeking copyright protection must pass – the requirement of originality. A phrase often heard in copyright law is “the sine qua non [essential ingredient] of copyright is originality”. Originality is a requirement mandated by the Copyright Clause of the U.S. Constitution. Justice O’Connor in Feist cites to the 1879 “Trade-Mark Cases” for the proposition that originality in copyright requires independent creation plus a modicum of creativity.

I find this to be both a delightful phrase and concept. By requiring only a modicum of creativity, copyright law sets a low threshold for protection. The requirement saves authors from having their expressive works judged by courts to determine if they are creative enough to warrant protection.

A work needs only a modicum – a scintilla, speck, dash, iota, scrap, morsel – of creativity. I hope that by writing this blog, I can add a slight spark of creativity to the areas of law I find so interesting. Intellectual property law appeals to me because it protects and promotes a wide range of creation – be it art, music, literature, or novel inventions. I don’t just find creativity to be entertaining – I believe it’s important. I am writing this blog mostly for my own purposes. I feel that by forcing myself to research, contemplate, and write about topics in intellectual property law I will become a better advocate for those issues I believe in.


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