This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and its physiological origins. Finally, a new analytical approach of evaluating the presence of creativity will be suggested to refocus the Fiest jurisprudence on its purpose and to make it consistent with the reality of thought and ingenuity in the human brain.
Ralph D. Clifford, Random Numbers, Chaos Theory, and Cogitation: A Search for the Minimal Creativity Standard in Copyright Law, 82 Denv. U. L. Rev. 259 (2005).