Compendium of U.S. Copyright Practices, 3rd Edition

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308.2 Creativity


308.2 Creativity


A work of authorship must possess “some minimal degree of creativity” to sustain a copyright claim. Feist, 499 U.S. at 358, 362 (citation omitted).


“[T]he requisite level of creativity is extremely low.” Even a “slight amount” of creative expression will suffice. “The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious it might be.'” Id. at 346 (citation omitted).


An author’s expression does not need to “be presented in an innovative or surprising way,” but it “cannot be so mechanical or routine as to require no creativity whatsoever.” A work that it is “entirely typical,” “garden-variety,” or “devoid of even the slightest traces of creativity” does not satisfy the originality requirement. Feist, 499 U.S. at 362. “[T]here is nothing remotely creative” about a work that merely reflects “an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.” Id. at 363. Likewise, a work “does not possess the minimal creative spark required by the Copyright Act” if the author’s expression is “obvious” or “practically inevitable.” Id. at 363.


Although the creativity standard is low, it is not limitless. Id. at 362. “There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. Such works are incapable of sustaining a valid copyright.” Id. at 359 (citations omitted).


If the Office determines that a work possesses sufficient creativity, it will register the claim and issue a certificate of registration. Conversely, if the Office determines that the work does not possess some minimal degree of creativity, it will refuse registration.


For more information on works that do not satisfy the creativity requirement, see Sections 313.4 (A) through 313.4(K) below.


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