This article explores the relationship between creativity and the community at large. The authors use as their example of a creative industry the fashion industry, and shows the ways that creativity should not be considered only as a matter of individual creativity. Instead, it should involve a "conversation" between individuals and larger communities of people and traditions. In this way, fashion takes many of its stylistic elements from the past. The article gives examples of taking elements from the Polynesian islands, urban street corners, stock-car races, and bowling alleys, and then transforming them into new trends. The evolution of fashion is described, beginning with haute couture in Paris, Milan, and New York that was the fountainhead of new styles, to the introduction of women in the work world, which resulted in a waning of the cultural appeal of high fashion. Then, celebrities and movie stars took the place of elite fashion shows, making fashion a more year-round passion than before. Lastly, the article recognizes the problem of "originality," and denotes the lineage of high fashion. It states that fashion shows the ways in which creativity involves building upon the past and sharing inspiration. Because of this, creativity requires freedom, in the authors opinion. The most innovative work comes from the artful recombination of existing work.

            This article is important for my topic because it examines the issue at large from a less monetary way of looking at things. The article does not discuss whether or not the designers will be hurt financially, but argues that in order for the creativity of designers to flourish, they must have the freedom to borrow inspiration from the community, others, and the past.

Abrams, H. "Originality and Creativity in Copyright Law" Law and Contemporary Problems © 1992 Duke University School of Law

            Abrams observe the change in the ways courts interpreted and used “originality” as a qualifying standard to test copyrightability of artworks, since Copyright Act of 1976 and the added clause of “original works of authorship.” Centering on the landmark decision of Feist v. Rural, he studies the development of originality standard before Feist, the implications of Feist opinion in defining “originality” once again, then looks at cases emerged after Feist to study the implications and applications of the decision.

In order for the standard to be applied, “originality” needs to be defined first. Abrams uses Justice Holmes’ opinion in Bleinstein v. Donaldson, to define originality as a “contribution of the author” rather than the “purpose” with which the work was created. Following the decision, standard of originality became about the “sweat of the brow,” about artist’s effort put in, with disregard to artistic or aesthetic merit.

Abrams marks Feist as the landmark decision that shifts meaning of originality from being about physical contribution to having “intellectual production, of thought, and conception.” The most important declaration of the decision is when court constitutionally mandates component of creativity as part of the requirement, which now is embedded in the Constitution. However, at the same time, Abrams recognize the challenge is to define what satisfies the minimum creativity required for copyright protection. He responds that minimum creativity is anything more than “placing an obvious grouping of data in a common and obvious format,” and more refined standards to be established by the future court.

Abrahams introduces series of cases after Feist decision, most notably Kregos v. Assoicated Press and BellSouth Advertising v. Donnelly Information Publishing, to illustrate that originality is no longer found in efforts measured by “time, expense, nor even in the vulnerability of competition,” but only in the final work that it is a work of some independent, original intent.

Abrams concludes on a positive note. The decision has, once and for, declared the importance in the expression of idea, more than the “sweat of the brow” in copyright law. He believes that Feist has made sure the abusive copyright claims on recompilations of facts and data, made so easily in light of emerging technology of today, by declaring a “meaningful minimum” in constitutional standard of original input.

While the paper does not directly argue about court’s aesthetic decisions on defining and shaping the meaning of originality, Abrams illustrates through Feist and one specific limit it has set on what is NOT copyrightable has helped provide precedence and clear standard for judges to follow. This goes on to support that, even with just one example that illustrate the line of bare minimum originality, the evaluation has become more consistent. Therefore, a definitive structure for evaluation of copyrightability will provide consistent jurisdiction that both the courts and public can follow.

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)

The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.

The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.

This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.