Commenting on Feist, Jane Ginsburg opined that U.S. copyright has never excluded author-oriented
personality notions of copyright and, inU.S. copyright rested on a "subjective" conception of originality, with a special, arguably anomalous,
reserve of sweat of the brow copyright for directories and similar fact-intensive, personality-deprived
work. 14 It is true that the Second, Fifth, Ninth and Eleventh Circuits had espoused a "creative selection"
theory, which required an author to show a small amount of creativity in order to receive copyright
protection. 15
The Feist court found that creative choices in the selection and arrangement of the data were necessary
to generate sufficient originality to warrant copyright protection. 16 This reasoning echoes earlier
Supreme Court cases dealing with photographs. 17 In Burrow-Giles, 18 the Court had to decide whether a photograph of Oscar Wilde was original. In concluding in the affirmative, the
Court noted the creative choices made by the photographer, including pose, costume, lighting,
accessories and the set itself.
Commenting on Feist, Jane Ginsburg opined that U.S. copyright has never excluded author-orientedpersonality notions of copyright and, inU.S. copyright rested on a "subjective" conception of originality, with a special, arguably anomalous,reserve of sweat of the brow copyright for directories and similar fact-intensive, personality-deprivedwork. 14 It is true that the Second, Fifth, Ninth and Eleventh Circuits had espoused a "creative selection"theory, which required an author to show a small amount of creativity in order to receive copyrightprotection. 15The Feist court found that creative choices in the selection and arrangement of the data were necessaryto generate sufficient originality to warrant copyright protection. 16 This reasoning echoes earlierSupreme Court cases dealing with photographs. 17 In Burrow-Giles, 18 the Court had to decide whether a photograph of Oscar Wilde was original. In concluding in the affirmative, theCourt noted the creative choices made by the photographer, including pose, costume, lighting,accessories and the set itself.
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