In Part 1 we considered the difficulties and tensions which arise from the meaning of ‘Writings’ in the Constitution, understood definitionally as a subject matter constraint, and the later evolving jurisprudence of the Supreme Court which gives little, if any, consideration to this. Our aim there was to make clear the problem which exists regarding the definition of ‘Writings’ in the Constitution, and that it has not been given the depth of treatment it deserves. In this concluding part, we will take up issues of expansive constitutional interpretation and stare decisis, engage some recent scholarly work in those areas, and how the jurisprudence could perhaps develop, which a view to the protection of fragrances. I hope, that from our discussion, you will appreciate the usefulness of our problem as a good example to consider the proper mode of constitutional interpretation, and, indeed, for the copyright lawyer the protection of subject matter in copyright. Of course, if you haven’t read Part 1 already, I would encourage you to do so.
- Constitutional interpretation and issues of stare decisis
At this point, even though the reader may disagree with the author’s argument thus far, it is hoped that he may join with the author in agreeing with Miller J. on at least one point: “The constitutional question is not free from difficulty”.[1] It is, therefore, useful at this point, first, to briefly overview the orthodox doctrine of constitutional interpretation. For our present purposes, we need not dwell deeply on contemporary authors echoing our own thoughts, but cite the main writers and authorities. We will then proceed to consider stare decisis, and, relatedly, problems of quasi-legislative judicial interpretation.
- Ordinary rules of interpreting the Constitution and the foregoing analysis
It is a fundamental aspect of the Rule of Law that laws be promulgated using clear and precise language, denoting, so far as possible, evidently the object with which it is concerned. If this is true of ordinary legislation, how much truer is it of constitutions, upon which the fate of nations lay? We need not here bring in ingenious foreign, or even modern, theorists; it is a principle recognized from the birth of the Republic. Madison saw it with perfect vision in Federalist No. 37, when he wrote, while acknowledging the obscurity of words: “Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them”.[2] Nevertheless, obscurity means that the meaning of legal words must be “liquidated and ascertained by a series of particular discussions and adjudications”.[3] This is the role of the judiciary, and the purpose of the Supreme Court in constitutional adjudication.[4]
What Madison must have had in mind was Blackstone’s rule of statutory interpretation, which states that: “Words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use”.[5] James Wilson, himself a framer of the Constitution, affirms the rule of English law for the United States in enunciating these fundamental rules:
“The first and governing maxim in the interpretation of a statute is, to discover the meaning of those, who made it. The first rule, subservient to the principle of the governing maxim, is, to discover what the law was, before the statute was made. The inference, necessarily resulting from the joint operation of the maxim and the rule, is this, that in explaining a statute, the judges ought to take it for granted, that those, who made it, knew the antecedent law”.[6]
It is this which we have applied to our discussion of “Writings” inasmuch as we have sought to apply the meaning the Framers intended and knew, and to read it in its legal-historical context. The Supreme Court itself affirmed this in Mattox: “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted”. [7]
As regards the sense of constitutional terminology, as intended and understood by the Framers, Tucker thus observes, “that as the powers of the federal government result from the compact to which the states are parties; and are limited by the plain sense of the instrument constituting that compact” (emphasis added).[8] Story, in enunciating the principles of constitutional interpretation, affirms our approach as to the plain sense of the constitution, and the technical glosses we have given to “Writings”.[9] Indeed, we have also considered the word in the context of the clause, and its interrelation to authorship, and not analyzed it in isolation.[10]
Notwithstanding, nor contradicting anything said in the foregoing, the Constitution is intended to be an enduring instrument, and thus to be “adapted to the various crises of human affairs”.[11] Which is to say, as regards our own issue, the specific requirements of the Copyright Clause must be interpreted with regard to their original meaning, which meaning must be applied to analogous cases arising at later points in history. This is what the Court arguably attempted and failed to do in Sarony by not heeding the complete effect of the “Writings” requirement in the context of the Clause.[12] Rather, it is may be argued that our definition thus far more soundly fits these principles, namely, that Congress’s expressly enumerated competence is limited to competence to printed books, but seems to grant a general power to protect productions of the written word, or productions analogous to it (which includes engravings etc.).
- Stare decisis considerations regarding copyright jurisprudence
It is a fundamental principle of the Rule of Law that, so far as possible, laws not only be promulgated with clear, precise, and unambiguous words but also that these words be construed consistently, clearly, and workably.[13] Notwithstanding, therefore, that stare decisis “is at its weakest when we interpret the Constitution because [the Court’s] interpretation can be altered only by constitutional amendment or by overruling [its] prior decisions”,[14] there are sound reasons for retaining the settled jurisprudence. Indeed, the doctrine itself sets a “high (but not insurmountable) bar”[15] to overcome notwithstanding that it is weakened, as O’Connor J. indicates,[16] in matters of constitutional adjudication. These are based, first, on the Court’s own grounds for evaluating stare decisis policy considerations; second, and following from this, on Rule of Law considerations. That said, we shall consider that a development is necessary in the jurisprudence to account for the mode of fixation criterion contained in the “Writings” requirement to for the jurisprudence to cohere more closely to American constitutional orthodoxy, and to restrain the Court from engaging in quasi-legislative judicial activism.
There are three essential steps in evaluating whether a precedent ought to be overruled which have been usefully synthesized in Ramos v Louisiana.[17] These are shortly stated as, first, whether the error was egregious. Second, the negative consequences, both jurisprudential and practical, must be significant. Third, the overturning must be one which does not unduly disrupt reliance interests.
As to the first, the Sarony precedent’s reasoning is subtle and substantially consistent with its predecessors. It is on one point which is similar and so easily confused with the fixation element, that is, on the point of the mode of fixation element of “Writings” where the Court errs. Furthermore, the standard it has enunciated has not only been adopted in every subsequent judgment of the Court, but has provided a workable solution to the application of the “Writings” requirement, which is at the very least plausible on a cursory analysis, for the creativity and fixation elements of the requirement are at least considered. It was not absurd for the Court in Sarony to err in accidentally failing to properly consider the element of mode of fixation, because it was not a wholly unreasonable inference that it drew from the first generation’s protection of engravings, sheet music, etc. to consider that they might have protected photographs had the means of producing them existed.[18] It was, in other words, a “garden variety error”.[19] It may be said that the shift in interpreting “Writings” as protecting all forms of “visible expression”[20] of ideas to protecting, in the codifying words of Congress, “any tangible medium of expression”[21] is wrong as, for example, recorded music is manifestly and obviously not visible.[22] However, it is submitted that even if that were an egregious error, it still ought not to be overruled based on the second and third stare decisis considerations.
As to the second consideration, it is very difficult to argue that any negative jurisprudential or practical consequences have resulted from Sarony and the cases succeeding it. How can it be shown that these precedents do not substantially cohere with previous decisions, except on one point which seems quite subtle as a matter of reasoning?[23] How can it be possibly said that these decisions are not workable?[24] The standard they contain has, on the contrary, been consistently applied case after case for well over a century now. Likewise, to say that the practical effects to the citizenry are deleterious is laughable.[25] Indeed, roughly 10% of employment in the United States is composed of industries greatly reliant on copyright protection.[26]
That, the employment consideration, when positively formulated defeats the second limb – the consequences to the people – of the second consideration. The precedents have stood without being substantially questioned now for many decades, and the oldest of them since 1884, and have allowed large industries to develop around them. These industries, and the people employed in them and in connection to them have reasonably relied on these precedents for their prosperity and livelihood.[27]
On ordinary, well accepted stare decisis grounds alone can we justify the retention of the current jurisprudence. That itself should not be remarkable. It should, however, preclude arguments for theories which would intentionally interpret the Constitution, here as regards the Copyright Clause, against the received sense and thus allow for the continued and unmitigated expansion of protectable subject matter against constitutional sense.[28]
- Quasi-legislative judicial interpretation
It has been suggested by those such as Reese that since a strict reading of “Writings” would preclude much subject matter, such as sound recordings, from copyright protection, that the word be intentionally interpreted expansively without regard to the precise meaning of the word itself as intended by the Framers.[29] This is suggested on policy grounds, presumably the great economic benefit resulting from expansive interpretation, beside legal grounds, which is to say on the grounds of which theory of constitutional interpretation one prefers.[30] Further, in general, does such expansive interpretation indeed come from “the kind of humility that comes from being part of the world”?[31]
To bring such theories to bear in interpreting the Copyright Clause is completely unnecessary. For one, the highly developed and multifaceted doctrine of stare decisis as enunciated by the Supreme Court does very well to preserve intact the expansive copyright jurisprudence. There is no need, therefore, to bring in other theories, themselves more conjectural and open to individual interpretation, to interpret the clause. It is stare decisis in the instant context which manifests the humility that human experience gives to the judiciary’s interpretation of the law. On the contrary, for the judiciary to make value judgments about the appropriateness of protecting certain sorts of subject matter would be to mimic the legislative role of Congress, whereas the role of the Court is to give effect to the law.[32] The judiciary is, in Story’s words, “to interpret, pronounce, and execute the law”, and the legislature to lay it down.[33] It would seem quasi-legislative, therefore, for the judiciary to intentionally expand categories beyond that which the legislator, here the People constituting the United States via the Constitution,[34] intended.
Nevertheless, the long and reasonable reliance on a judicial misinterpretation which itself is not egregious means that stare decisis applies.[35] This is to protect the People across generations from the judiciary easily harming their interests, whereas they have constituted the judiciary to promote good government through the specifically legal mode of protecting the Constitution.[36] It is in this sense stare decisis is rooted in Article 3 of the Constitution. The judiciary, provided the criteria for overruling precedent are met, may overrule such precedent; alternatively, the People may codify such precedent by amending the Constitution. The Constitution knows nothing of its meaning having a transformative effect except by the means of amendment the People specifically provided for in it.[37] If the idea of Reese as to its interpretation be allowed,[38] it we would contemplate an unconscionable de facto amendment of the Constitution by judicial subterfuge.
It may be submitted that other constitutional traditions are more comfortable with allowing the judiciary to inject different meanings into constitutional terminology beyond the original sense. Observing this, Lord Reed in the Scottish Court of Session has observed that “the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation”.[39] Nevertheless, this is not a power which the judiciary in the United States possesses, at least to the extent that they are bound by the intended meaning of the Constitution as the Supreme Court’s jurisprudence indicates.[40] Stare decisis must suffice, therefore, and the original meaning more closely applied in new sorts of cases arising under the Copyright Clause.
- Vermeule-Style Interpretation
We have thus far argued from a corner of the prevailing positivist schools of judicial interpretation. This is very well, because to make an appeal to the sensibilities of one’s own audience, especially when challenging them, it is perhaps advisable to uphold their fundamental presumptions. It would, however, be inadvisable for us not to consider, albeit shortly, a strand in the jurisprudence which also allows Sarony to be retained but with less elaborate reasoning. If I may introduce my personal voice here, I feel constrained to introduce this note in the main body and not as an addendum to the blog to maximize the chance that it is actually read, so I hope you will consider what is about to be said.
I have in mind Vermeule’s thought provoking work, much of which is very interesting; of course, I do not find myself in complete agreement with him, but he does make some points which it would be unjust to ignore. Furthermore, I am only using his work as a supplement to the main argument, and sparingly. I am not interested, here, in entering the fractious fray of the live dispute regarding Professor Vermeule’s theory. At any rate it would far exceed the scope of the current task!
As a norm of legal interpretation, he invokes Justinian’s Digest: “Knowing laws is not a matter of sticking to their words, but a matter of grasping their force and tendency”.[41] Applying this norm to the US context, he finds support in the Supreme Court’s precedent of Jacobson (1905),[42] itself quoting Marshall C.J.’s unanimous opinion in Sturges (1819): “the spirit of [..…] a constitution is to be respected not less than its letter; yet the spirit is to be collected chiefly from its words”.[43] Thus, on this view, rigid adherence to the law’s letter is inadvisable, if it contradicts its spirit.
What, then, is the spirit of the Copyright Clause? We must, as Marshall C.J. says, gather it chiefly from the words of the Constitution, but not the words alone, for ‘chiefly’ does not mean ‘only’. We have seen already that the interpretation that the first generation of the Republic gave is binding, and their interpretation was more expansive than a completely rigid definition of ‘Writings’ gleaned from dictionaries popular at the time. So, it is not wholly unreasonable for the Court in Sarony to be construed as correctly satisfying the fixation element enunciated in the Trademarks Cases,[44] if implicitly since it did not seriously consider the mode of fixation requirement. That is to say that the requirement that a work be “embodied”[45] in the correct mode of fixation can be interpreted at a level of generality which permits an analogy between photography and engravings as static modes of representation of original authorial conceptions. If we are to embrace this line of reasoning, there seems to be no rational reason not to push the line to its furthest extent. For here the authorial originality element by far has the greatest importance in determining copyright, and it is not in any way equally weighted with the mode of fixation element. Indeed, the sense of the word in its jurisprudential and historical (that is, first generation) context makes plausible a reading favoring gradual expansion as a form of “liquidation” of the meaning, what Vermeule might call the “gloss of custom”.[46] Nevertheless, the mode of fixation requirement may still be of help in the future, and it may perhaps be unwise to ignore it altogether as shall be argued in the following section.
- Subject matter and prospects for future development
The Constitution does not enumerate a specific and exhaustive list of subject matter which may be considered to satisfy the “Writings” requirement. This is why, in Sarony and the cases following, the Court has been asked to determine if affording certain items copyright protection is constitutional. The 1976 Copyright Act provides that copyright subsists in “original works of authorship fixed in any tangible medium of expression, now known or later developed […]” (emphasis added).[47] The list it provides is non-exhaustive and does not purport to cover all conceivable categories; indeed, the word “includes” preceding the list indicates that the list is authoritative but illustrative in that it is non-exhaustive.[48]
What sort of subject matter beyond that list may legitimately be considered to be covered by the Act depends on several factors. These are, whether they satisfy the statutory definition of a copyrightable work.[49] Next, they must satisfy the constitutional requirement of independent creation and a modicum of creativity as settled by Feist.[50] Third, they must satisfy the understanding of a “Writing” as contained in the jurisprudence of the Supreme Court as outlined above. Fourth, we propose that the subject matter must also fall within the mode of fixation requirement which we have argued is an element of “Writings” under the Copyright Clause. The fourth consideration is important. It is useful if we use an example to illustrate the application of our criteria, and how it would interact with other ways of interpreting the clause, and compare this briefly with other copyright regimes.
Consider perfumes; are they copyrightable? This is not an absurd query, for it has not only been suggested as at least a hypothetical, if not a realistic, possible within the United States,[51] and this debate is live in jurisdictions with a similar originality standard to the U.S.[52] Surely they represent independent intellectual conceptions, in the idea of certain fragrances being mixed in certain proportions, and they satisfy the bare minimum statutory requirement that they be capable of being “perceived”.[53] The U.S. and the European Union standards of originality[54] are so close in similarity that E.U. case-law may assist the development of the U.S. understanding in the judgments of the federal courts. In the E.U. it has been held that food taste, a case arguably analogous to the sensory perception of fragrances, cannot be precisely and objectively ascertained, and is thus ineligible to be copyright protected.[55] We submit that this understanding sheds light on the probable correct position to be adopted in the United States: that while it is true that perfume scents are capable of being “perceived”,[56] the sort of perception is not “tangible” in an objective sense that Mazer v Stein indicates as a constitutional minimum.[57] Thus the case of fragrances, and tastes for that matter, are distinguished on the basis of the originality standard from that of sculptures. Based on the constitutional case-law, a perfume could potentially be, therefore, excluded from copyright protection.
A statutory bar to a perfume being counted as copyrightable is if the Court would accept it as constituting a “useful article” which has an “intrinsic utilitarian function” which is not depictive or informative.[58] This would seem to be constitutionally consistent because the relevant clause of the Constitution specifically distinguishes between “Writings” and “Inventions”, that is, between copyrightable and patentable subject matter.[59] Nevertheless, it does not follow that there may not be an overlap between the two subject matters.[60] It is difficult, however, to establish how the technical or functional aspects of the matter may be distinguished adequately from the aspects constituting an expression of original authorship.[61] We may take some limited inspiration from the case-law of the E.U. which prevents subject matter whose realization was “dictated by technical considerations” to the effect of preventing “creative freedom” from being protected by copyright.[62] If we assimilate this with an American understanding, we may hold that were utilitarian considerations, such as olfactory pleasure to predominate in the creation of a tangible item, and that the more intellectual aspects served that purpose, such an item is not copyright protected. Thus a perfume may be excluded from copyright protection.
Nevertheless, the very minimal interpretation the Supreme Court has given to the “Writings” requirement has emboldened some commentators to suggest that the Court may continue this trend.[63] That is, to interpret the word yet more expansively in line with a policy choice to allow more subject matter to be covered by the requirement, and as a matter of legal constitutional interpretation.[64] A shift, indeed, not be unheard of considering the interpretive shift between the “visible expression” requirement of Sarony[65] and the lower “tangible” expression of Mazer v Stein.[66]
This would thus conceivably merely require a reformulation of the originality requirement to be even lower from tangibility to perceptibility, with an ostensible affirmation of the previous case-law by conflating tangibility and mere perceptibility. In this way, even fragrances may – in truth against the grain of precedent – be held to qualify as copyrightable. For reasons of constitutional interpretation given above, such judicial innovation is to be emphatically rejected.
Instead, a further ground ought to be adopted in rejecting fragrances as copyrightable. That is the simple ground that even if a fragrance is an intellectual expression in tangible form (which it surely is not), it simply does not meet the mode of fixation requirement which “Writings” implies. How can a fragrance be held to be in any way closely analogous to a written paper, or a map?[67] It evokes primarily an intangible sensory experience, for one. It does not bear any remote analogy to any subject matter which was considered a writing in the first generation of the Republic.[68] Even if, on their intrinsic merits, such considerations would cut against the case-law defining “Writings” broadly, this is not constitutionally problematic.
For we have established that on firm grounds of stare decisis that the previous case-law ought not to be overruled. Furthermore, some of the development may even, depending on how one applies Sturges (1819) be legitimate.[69] We need only hold that any further matter which comes for consideration have the mode of fixation element intrinsically contained within the “Writings” requirement be applied to it. In this way, fragrances would fail to qualify for copyright protection on another constitutional ground. This would lay the groundwork for the third limb of the “Writings” requirement to be freshly applied to new subject matter without unduly disrupting the legitimate expectations of citizens who have come to rely on the existing copyright jurisprudence for their livelihood.
Conclusion
In this brief essay, we have established a few points. First, we have established that “Writings” at the time of the Founding meant any written paper or item analogous thereto. We have seen that at the highest level there has been a significant shift from the original meaning of “Writings” to considering it as merely a requirement for original authorship and some form of tangible expression, or fixation, thereof. This jurisprudence, however, ought not to be discarded as constitutional on strong stare decisis grounds, and, perhaps, grounds of interpretation enunciated by Marshall CJ in Sturges (1819).[70] However, when new subject matter not previously considered by the Court for copyrightability does arise, the standard laid down in the jurisprudence, and the intrinsic requirements contained within the “Writings” requirement itself, both held together by stare decisis considerations should be applied. Thus, a more constitutionally consistent copyright jurisprudence is developed, and long-standing reliance interests are not disrupted. New subject matter would be assessed more closely in line with the Constitution in this way.
Note: Citations are in continuity with Part 1.
[1] Sarony, op cit,at 56.
[2] James Madison, The Federalist No. 37 “Concerning the Difficulties of the Convention in Devising a Proper Form of Government” (Daily Advertiser, January 11 1788).
[3] ibid.
[4] U.S. Const. Art. 3 §2; Marbury v Madison 5 U.S. 137 (1803)
[5] William Blackstone, Commentaries on the Law of England, Vol 1 (Clarendon Press, 1765) 59
[6] James Wilson, Lectures on Law (1789-1791)Part 1, Ch. I, para. 41.
[7] Mattox v United States 156 U.S. 237 (1895) 155
[8] St George Tucker, View of the Constitution of the United States (Liberty Fund 1999 [1803]) 174.
[9] Joseph Story, op. cit., §§ 451-455.
[10] ibid, §455.
[11] McCulloch v Maryland 17 U.S. 316 (1819) 415 (Marshall C.J.)
[12] Sarony, op. cit., at 58
[13] Cf.the cases of Swift & Co. v Wickham 382 U. S. 111, 116 (1965); Planned Parenthood of Southeastern Pa. v Casey 505 U.S. 833 (1992) 854-855; Dobbs v Jackson Women’s Health Organization 597 U.S. 215 (2022)218-221 which grapple with elements of stare decisis, and thus inevitably with the stability of law. It is expedient to note here that this idea of the necessity of legal stability has, in recent times, been most cogently stated as an elementary principle of the Rule of Law in the extra-judicial writings of a retired British judge, Thomas Bingham in The Rule of Law (Penguin Books 2010).
[14] Agostini v Felton 521 U.S. 203 (1997) 235 (O’Connor J.)
[15] Ramos v Louisiana 590 U.S. ___ (2020) (Kavanaugh J., concurring in part) (slip op. at 9).
[16] Agostini v Felton, op. cit., at235.
[17] Ramos, op. cit., (Kavanaugh J.) (slip op. at 7-8).
[18] Sarony, op. cit., at 58
[19] Ramos, op. cit., (Kavanaugh J.) (slip. op. at 7)
[20] Sarony, op. cit., at 58
[21] 17 U.S.C. § 102(a)
[22] Cf. ”Congressional Powers and Limitations Inherent in the Copyright Clause” [2007] 30 Colum. L.J. & Arts 259, 276; Goldstein, op. cit.
[23] Ramos, op. cit., (Kavanaugh J.) (slip. op. at 8)
[24] ibid.
[25] ibid, citing Brown v Board of Education 347 U. S. at 494–495; West Virginia State Board of Education v Barnette 319 U. S. at 630– 642; Payne v Tennessee 501 U. S., at 825–827
[26] Jessica Dutra and Robert Stoner, Copyright Industries in the U.S. Economy: the 2024 Report (International Intellectual Property Alliance, February 2025) <https://iipa.org/files/uploads/2025/02/IIPA-Copyright-Industries-in-the-U.S.-Economy-Report-2024_ONLINE_FINAL.pdf> accessed 20 February 2025.
[27] Ramos, op. cit., (Kavanaugh J.) (slip. op. at 8)
[28] Cf. “Congressional Powers and Limitations Inherent in the Copyright Clause” [2007] 30 Colum. L.J. & Arts 259, 284 (Tony Reese).
[29] ibid
[30] ibid
[31] ibid, 237 (Graeme Austin).
[32] U.S. Const. art. 3
[33] Joseph Story, op cit, Book III, ch. 38, §1568
[34] U.S. Const., preamble.
[35] Cf. Ramos, op cit., (Kavanaugh J.) (op. cit. at 7-8).
[36] Cf. Joseph Story, op cit., Book 3, ch. 38, §1568.
[37] U.S. Const. art. V
[38] “Congressional Powers and Limitations Inherent in the Copyright Clause”, op. cit., at 284 (Tony Reese).
[39] Imperial Tobacco v Lord Advocate [2012] CSIH 9 at [71]
[40] Agostini v Felton, op. cit., at235.
[41] Justinian, Digest 1.3.17 (Celsus, Digest 26) (trans. A Watson 2009) in Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022) 80
[42] Jacobson v. Massachusetts, 197 U.S. 11 (1905), 22
[43] Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819) 202
[44] Trademark Cases 100 U.S. 82 (1879) 94
[45] ibid
[46] Adrian Vermelule, op. cit., at 88
[47] 17 U.S.C. § 102(a)
[48] ibid
[49] ibid
[50] Feist, op. cit., at 346 (O’Connor J.)
[51] Thomas G Field, Jr ”Copyright Protection for Perfumes” [2004] 45 Idea J.L.T. 19; Yashika Nagpal, ”Perfume as an Artistic Expression: Scope of Intellectual Property Rights in Perfume” (Fashion & Law Journal, 3 Oct 2021) <https://fashionlawjournal.com/perfume-as-an-artistic-expression-scope-of-intellectual-property-rights-in-perfume/> accessed 22 Feb 2025
[52] That is, in France and the Netherlands which have a requirement of originality based on minimal creativity: Sterling on World Copyright Law, op. cit.,6.48-6.54 outlines the debate on the copyrightability of fragrances.
[53] 17 U.S.C. § 102
[54] The E.U. standard is stated as follows: An original work is one which is “the author’s own intellectual creation” and is “expressed”. If the author ”expresses his creativity” in an original manner, he makes an “intellectual creation”. As regards words, the scenario in the case where the standard was laid down, this means there must ”choice, sequence and combination” of words. – Case C-5/08 Infopaq International AS v Danske Dagblades Forening [2009] ECR I-6569 [37], [39], [45]. This test is thus extremely close to the Feist, op. cit., standard of original authorship requiring a “modicum of creativity” (at 346).
[55] Case C-310/17 Lenovo Henglo v Smilde Foods B.V. [2018] ECLI:EU:C:2018:899; Cf. Sterling on World Copyright Law, op. cit., 6.53
[56] 17 U.S.C. § 102
[57] Mazer v Stein, op cit, at 214
[58] ibid §101
[59] U.S. Const. art. 1, §8, cl. 8.
[60] Mazer v Stein 347 U.S. 201 (1954) 217-18; Thomas G Field, Jr, op. cit., 29-30.
[61] Masquerade Novelty, Inc. v. Unique Indus., Inc. 912 F.2d 663 (3d Cir 1990) 670; Thomas G Field, Jr., ibid, 30.
[62] Case C‑683/17 Cofemel — Sociedade de Vestuário SA v G-Star Raw CV [2019] ECLI:EU:C:2019:721 [31]
[63] “Congressional Powers and Limitations Inherent in the Copyright Clause”, op. cit., 276 (Tony Reese).
[64] ibid
[65] Sarony, op. cit., at 58.
[66] Mazer v Stein, op. cit., at 214.
[67] Cf. Sarony, op. cit.,at 58; Samuel Johnson, op. cit.
[68] Cf. Sarony, op. cit., at 58.
[69] Sturges, op. cit., at 202.
[70] Sturges, op. cit., at 202
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