Creativity Requirement

 The copyright law requires that for a work to be protected by copyright, it must be original and creative.  This means that the work must have been developed independently by its author, and should have some creativity involved in the creation.  A derived work is based in part on another work, but it still qualifies for separate copyright protection.

Creativity is therefore one of the basic requirements for copyright protection.  To meet this criterion, a work must include something that is above and beyond the original.  Though verbatim use is not considered original, reference to the original work that is used to discuss a new concept is considered original.  The creativity therefore need only be  slight for the work to be eligible for protection.

A work must have a minimum amount of creativity over and above the independent creation requirement for getting copyright protection.  Works completely lacking in creativity are denied copyright protection even if they have been independently created.  However, the amount of creativity required is very little.  A work need not be novel, unique or even good to be sufficiently creative.  All that is required is that the work be the product of a minimal creative spark.  Most work of authorship therefore meets the requirement of “creativity”.  

The requirements of originality and creativity are derived from the statutory qualification that copyright protection extends only to “original works of authorship.”  The creativity requirement is different from the originality requirement and involves intellectual conception by the author.  A fairly low level of creativity is necessary, and most works contain the necessary minimal level of creativity.

The U.S. Supreme Court has ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act.  Names, titles, and other short phrases do not receive copyright protection.  This is because the degree of creativity is simply too minimal to meet the threshold requirement that at least a minimum amount of original expression must exist before copyright protection may attach to a work.

There are however some types of works that are deemed by judges to contain no creativity at all.  For example, a mere listing of ingredients or contents, such in a recipe, is considered to be completely lacking in creativity and cannot be protected by copyright.  Similarly, telephone directory white pages and other listing of data have also been deemed to lack even minimal creativity. 

Raw data or facts such as name, address, and phone numbers lack ‘minimal creativity’ and hence are not eligible for copyright protection.  Databases are an entirely different subject and may have complete or limited protection under copyright law.  Copyright protection exists for “Automated Databases” providing protection for certain collections of information that meet the minimal creativity test.  The law basically protects even a person who has compiled a database, but has taken some effort and creativity on his/her part to ‘compile’ the data.  The ‘minimal creativity’ requirement is used to prevent someone from taking an exact copy of a work in the public domain (like photocopying a book, or photograph) and claiming copyright.  Making a single change to a work in the public domain also does not meet the ‘minimal creativity’ requirement.  There must be demonstrable effort, skill and/or minimal creative changes to the original work when claiming a copyright to a work in the public domain.

As with the originality requirement, the creativity requirement also works to prevent others from making an exact copy of a public domain work from getting a copyright protection.  For example, photographs of public domain paintings may also fail the minimal creativity requirement. 

Certain types of changes made to public domain works, even though original are not copyrightable because they are not minimally creative.  For example, transposing a public domain musical composition from one key to another is not considered as “creative” and therefore does not enjoy copyright protection.


Inside Creativity Requirement