“Creativity refers to the invention or origination of any new thing (a product, solution, artwork, literary work, joke, etc.) that has value.”[1]
Creativity is hard to pin down and means different things to different people. Psychologists and researchers studying machine learning differentiate between the ability to come up with something that is novel and useful to the individual, and the type of creative innovation that is groundbreaking.
To artists and authors, creativity may require evidence of unusual brilliance, insight, or novelty – not merely rearranging stock images and stereotypical characters, but really creating something new and valuable to society. This conceptualization of creativity has more to do with moral rights than other recognized legal concepts. Within the law, some amount of creativity or originality is a prerequisite to attaining copyright protection.[2] For an inventor or scientist to successfully apply for patent protection, some novelty of concept or innovative leap of imagination must be present. The bar for patent protection is somewhat higher than for copyright – if an artist combines stock shapes in different ways they can still get copyright protection, but if an inventor takes standard mechanisms and recombines them they cannot necessarily get patent protection in the resulting machine.[3]
While the threshold for creativity is very low in copyright law – it takes something as uncreative as an alphabatized phonebook before judges will concede that minimal standards of creativity have not been met – this muddies the waters somewhat in collaborative works or when authorship is unclear. Sure, people working together as partners can be joint authors, but what about crowd-sourced collaborations, or the works output from creative machines?[4]
- From Wikipedia↵
- Potential litigants must be aware, that just because many creative works can receive copyright protection, doesn’t mean that everything creative they do is protected under the law. You generally can’t, for example, copyright the idea for a video, the title of a book, or things like design elements and musical riffs which have become common industry standards.↵
- This is dependent on a number of factors. If they merely add or rearrange items in a way which really adds nothing or would be obvious to a “person having ordinary skill in the art”, such as another scientist or inventor, than they cannot get a patent. If the combination isn’t so obvious and has unexpected synergistic effects, than it’s possible to receive patent protection.↵
- “Increasingly, sophisticated computer programs call into question some of the foundational assumptions within the intellectual property (“IP”) regime by autonomically producing works which, if executed by a human author, would qualify for copyright protection. Machines have no intention of creating novel works, nor do they consider incentives as such. With our current technology, only humans can make genuinely creative choices. It remains an open question as to whom, if anyone, would get the rights if all the innovative or novel contributions were the work of a machine.” For more on this, see Artificial Intelligence and Authorships Rights, my short paper for Harvard’s Journal of Law and Technology Digest.↵
