TYING UP FEIST’S LOOSE ENDS: A PROBABILITY THEORY OF COPYRIGHTABLE CREATIVITY

7 Wake Forest Intell. Prop. L.J. 45

The article begins with an examination of the Supreme Court’s 1991 decision in Feist Publications, which established a nebulous “creativity” requirement for a work to obtain copyright protection. After concluding that the Court’s opinion gave little guidance to lower courts, the author suggests that the mathematical theory of probability would serve well in conceptualizing creativity. Specifically, the author proposes that a work’s relative creativity be assessed based on the probability that a potentially copyrightable work will be created given the totality of constraints on the work’s genesis.

article.7.45.pdf

324 KB