The Chip Board
Custom Search
   


The Chip Board Archive 05

Jill, here's a lawyers interputation...

One of the requirements under the Copyright Act of 1976 is that the work be an "original work of authorship". The legislative reports and subsequent case law have included in this language the idea that the work must possess some minimum degree of creativity. This notion was discussed in the seminal Feist case (this is the phone book case I was trying to think of on the phone). In the Court's words in Feist there must be a "creative spark". However, it should be noted that in Feist and its many progeny the threshold for creativity is extremely low. In Feist the Court held that a work may contain the requisite creative spark "no matter how crude, humble or obvious it might be."

Subsequent courts have required "some modest amount of intellectual labor", "some creative intellectual or aesthetic labor... almost an ingenuity in selection, combination or expression, no matter how crude, humble or obvious will be sufficient." There is a requirement that the creative element could be considered de minimis (One court held that a Jackson Pollack all white painting could not be copyrightable on de minimis grounds). Cases where protection has been denied on de minimis grounds include: "over the top", "along the way take time to smell the flowers", columnar listings in computer programs, ordinary phrases, descriptions of contents of products, simple music melodies and dance steps.

However, there is a whole body of cases rejecting the de minimis argument which run the other direction. Patry on Copyright acknowledges that there is no clear rule of thumb on this issue.

In short, I think you could argue with a straight face that the methodology of the numbering system contained the minimum degree of creativity to make the material subject to copyright protection. However, a decent argument could be made that such creativity was de minimis.

Let's put it this way, I don't think you would be subject to Rule 11 sanctions if you filed a claim and it certainly couldn't hurt to send a cease and desist letter and let their lawyers try and sort out how to respond.

Jim Reilly's "OLDEST" Son
--------------------------------------------

There is actually more to this than meets the normal persons perspectives. Laws and regulations are subject to the same thing as a graded slab.... Someone's own judgement, and not everyone comes up with the same judgements even though the item looked at is the exact same one.

Messages In This Thread

ICG Grading? Extra Info with that GRADE???
I know this has been asked...
Re: I know this has been asked...
Jill, here's a lawyers interputation...
Ummmm Marv???
Best I can do is say...
I guess...

Copyright 2022 David Spragg