“Creative Spark” in copyright is essentially magic

Sorry to keep beating on this, but there are things I need to work out here, so bear with me…

In the US Copyright Office letter regarding Zarya, they mention on 3 separate occasions (one time is the lawyer letter, twice is the CO) the “creative spark” which is allegedly linked to the bare minimum requirements around creativity/originality/something/something.

They mention this term, creative spark, referencing a spine-tinglingly exciting work of copyright office lore called COMPENDIUM (THIRD), which seems to correspond to this PDF. Within that work, there’s a particular use of this phrase in section 310.3:

When the U.S. Copyright Office examines a work of authorship, it determines whether the work “possess[es] the minimal creative spark required by the Copyright Act and the Constitution.” Feist, 499 U.S. at 363.

However, upon looking up the Copyright Act of 1976, or US Code Title 17 (PDF), as it also seems to be called, it does not appear to include the word “spark” anywhere, let alone define it in plain language.

I believe this to be the text of the Supreme Court Feist case (see also the summary on Wikipedia). There are three references to “spark” in that document, the first one seeming the most relevant, used in relation to the term original or originality:

To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Id., § 1.08[C][1]. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.

Another vague word that gets used to measure minimum required creativity levels is “modicum” and it rears its head here as well.

(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity.

These terms might be commonly used in legal contexts, but I’m hard pressed to find anyone who can clearly define what constitutes a “creative spark” and a “modicum of creativity.”

Creative spark, for my money, sounds more like a magical or mystical word more than a legal word. My impression as a reader and armchair analyst with the background that I have tends to link this concept to the idea of the “divine spark,” which is something like, depending on the tradition, the fingerprint or the shard of the Creator left in creation.

Perhaps there is some mysterious legal exegesis floating around out there which more properly links these two in the context of copyright and the Judeo-Christian tradition, but when I hear “creative spark” then, I sort of automatically assume we’re talking about a spiritual concept, which makes it much much easier to understand why nobody is actually able to explain clearly what the hell they are talking about here.

If they just were like “Oh, we mean it’s, uh, you know, magic…,” then I would be like, okay. Well, that’s stupid, but okay. At least you’re coming out and saying it clearly. But all the rest of this seems like a massive case of burying the lede, and then turning it into law.

If if if if my esoteric read of these interlinked concepts is true, I think what the Church of the Copyright Office is attempting to decree is that AI has no divine spark, and thus cannot something something. And artists who use AI are very bad, and you should all be ashamed of yourselves for eternity… 😉

Tangent: this rant made me remember Tolkien’s excellent essay on Subcreation, which because it is openly religious, actually ends up for me being a bit more coherent than the arguments promulgated by the US Copyright Office, which does not openly admit its work is serving a religious function of upholding the hegemonic colonialism of the imagination.