From Facts to Form: Extension and Application of the Feist "Practical Inevitability
From Facts to Form: Extension and Application of the Feist "Practical Inevitability " Test and Creativity Standard
Joseph P. Hart 0 1
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1 Joseph P. Hart, From Facts to Form: Extension and Application of the Feist "Practical Inevitability" Test and Creativity Standard, 22 Golden Gate U. L. Rev. , 1992
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FROM FACTS TO FORM:
EXTENSION AND APPLICATION
OF THE FEIST "PRACTICAL
INEVITABILITY" TEST AND
CREATIVITY STANDARD
I. INTRODUCTION
This Note will analyze the results of extending the "practi
cal inevitability" test and creativity standard in the holding of
Feist Publications, Inc. v. Rural Telephone Service Co. 1 from
works involving the compilation of facts to other works includ
ing computer programs, sculpture, signs, fabric patterns and
chinaware patterns. It will also discuss the Copyright Office's
review of copyright applications for functional objects. The
Note will continue with an analysis of the ramifications of
the policy of judicial deference to the Register of Copyright's
decision on creativity when reviewing a copyright denial. It will
conclude with a discussion of the judicial policy that an action
for infringement is the most appropriate place to determine the
creativity element necessary for obtaining a copyright for
functional objects.
II.
THE BASIS OF COPYRIGHT PROTECTIONS
The right of an author under the common law to have the
sole right of initial printing and publishing of his or her work
was decided in England by Lord· Mansfield writing for the
majority in Millar v. Taylor. 2
In the United States, constitutional copyright protection
subsists in originai works of authorship.3 The two require
ments for authorship, independent creation and creativity,
arise from the statutory phrase "original works of author
ship" which in turn has its basis in the Constitution.4 In order
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to be certified as a pictorial, graphic or sculptural work appro
priate for copyright protection, the work must incorporate
some creative authorship in its delineation or form. 6
III. THE "PRACTICAL INEVITABILITY" TEST AND
CREATIVITY STANDARD OF FEIST
The Supreme Court in Feist Publications, Inc. v. Rural
Telephone Service CO.6 addressed the constitutional origins of
copyright and determined a standard of creativity to be applied
to all works. Although the Court could have restricted its
holding to the white pages telephone directory which was the
subject of the dispute, the Court used the opportunity for a thor
ough discussion of the requirement of creativity in copyrighted
works.
The issue in Feist was whether the white pages listings in
a telephone directory, which compiled an alphabetical listing
of the names of telephone subscribers together with their
addresses and telephone numbers, had the requisite creativ
ity to be afforded copyright protection.7 The Court held that a
work is "original" and qualifies for copyright protection if the
work is independently created by the author and possesses
some minimal degree of creativity.s Originality for copyright
purposes is constitutionally mandated for all works.9
The Supreme Court held that the vast majority of works
"make the grade. "10 The requisite level is extremely low, even
a slight amount will suffice. ll However, "originality" does not
require "novelty;" a work may be original even though it is very
similar to other works so long as the similarity is fortuitous,
not the result of copying. 12
5. 37 C.F.R. § 202.10(a) (1991).
6. 111 S. Ct. 128
2 (1991
).
7. [d. at 1282. Rural Telephone Service was a public utility providing service
to communities in Kansas. Rural was required by Kansas regulations to compile a direc
tory including white and yellow pages. The information was obtained from sub
scribers when they obtained service. Feist Publications, Inc. was a publishing
company that specialized in area wide telephone directories. When Rural refused to
license its white pages listings to Feist, the information was extracted without con
sent. Although Feist altered many of Rural's listings, several were identical to list
ings in Rural's directory. The district court granted summary judgment to Rural in
an infringement suit, which was affirmed on appeal. [d. at 1286.
8. [d. at 1287.
9. [d. at 1288.
10. [d. at 1287.
11. [d.
12. [d.
1992]
Prior to Feist the level of creativity necessary for a show
ing of copyrightability had been described as "very slight,"
"minimal"13 or "modest."14 The Court in Feist held creativity is
the fundamental copyright principle that mandates the law's
seemingly different treatment of facts and factual compil
ations. 16 No one may claim originalit (...truncated)