Random Numbers, Chaos Theory and Cogitation: A Search for the Minimal Creativity Standard in Copyright Law

Abstract

For a copyright to subsist, the Constitution requires that sufficient "creativity" be found within the expressive elements of the work. The Supreme Court, in the Feist decision, described this Constitutional requirement as the search for a "creative spark" within the work. Unfortunately, the Court's imprecision in defining what a "creative spark" is has left the lower courts free to impose judicial censorship based on the judge's perceived worth of the work. Further, the expectation of a "spark" contradicts what neuroscience has learned concerning how creative thought occurs.

The scientific evidence establishes that a creative thought is less inspirational than attractor-limited, random firings of brain cells. The brain's complexity and feedback require that its operation be described using chaos theory. For a conscious thought to be generated, a pattern of signals must occur. Usually, the pattern of the signals fit within an existing attractor that define a known thought. Sometimes, however, a new attractor is established either because the pattern is randomly novel or because an existing pattern randomly is not recognized. These new attractors are the novel thoughts. Their existence most typically results from a random misfiring of the brain.

Because of the non-deterministic, non-inspirational functioning of the brain, looking for a "creative spark" will result in the court making an inappropriate value judgment about the creative worth of an expression. Therefore, to insure that constitutionally required creativity is contained within the work without simultaneously empowering judges to disallow copyrights to works they do not like, a more specific test is needed. As courts deal with evidence, a three-part test is proposed that determines if there is sufficient evidence of creativity. The primary focus of the test is whether the author has made choices among alternate methods of expressing a particular idea. Where the author has made choices among expressive elements, creativity exists and a copyright subsists.

Keywords: copyright, creativity, chaos theory, neuroscience