Rewarding Creativity: Transformative Use in the Jazz Idiom

Stephen R. Wilson


A crayon drawing from a five-year-old child likely produces a copyrighted work. Notating or recording two measures of a three year-old child depressing piano keys, while not conventionally pleasing to the ear, may nevertheless be worthy of a copyright.1 The artistic merit of a work is not a factor in determining originality. Simply stated, an author satisfies copyright formalities when she affixes an original work of authorship in a tangible medium.2

Case law indicates that the threshold requirement for the originality element of a copyright is a showing of some "minimal level of creativity."3 Few could disagree that the low threshold requirement for originality encourages creativity. An inherent unfairness exists, however, when copyright law shuns creative artists from attaining a copyright.

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