ABSTRACT
Since the Supreme Court’s 1991 Feist opinion, courts have looked for originality – defined for copyright purposes as independent creation and creativity – as a requirement for copyright protection. This Article argues that, as applied, copyright’s creativity requirement ends up protecting works that aren’t creative at all. Courts consistently conflate creativity with discretion and skill, for example, and a handful of features of copyright’s overall structure – its refusal to consider novelty as a relevant criterion, for example-make an assessment of actual creativity a theoretical cul-de-sac. Using examples that range from photography and software to film and visual art, this Article contends that copyright’s creativity requirement is either a misnomer (because even before Feist courts never looked for actual creativity), or a failed standard (because courts haven’t looked for actual creativity since then). In addition, the Article offers criteria that courts can consider when looking for actual creativity.
Szynol, Paul, Copyright and the Myth of Creativity (October 16, 2024), Berkeley Technology Law Journal, Spring 2025.
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