One of the defining features of modern U.S. Copyright law is that it is very easy for works to receive copyright protection. Nearly any work that is recorded in some permanent form qualifies for copyright. However, even though it may be easy for a work to qualify, not everything does. In fact, some things aren’t creative enough to receive a copyright. Now, a recent story about copyright over recordings of white noise begs the question: when is something creative enough for copyright? 

As reported by the BBC, an Australian YouTube user, Sebastian Tomczak, posted a 10 hour long video of continuous white noise in 2015. Fast forward to January 4, 2018, when Tomczak received 5 adverse claims on his video from supposed copyright owners. Is this right? Can white noise really be copyrighted? Is it creative enough?

The U.S. Supreme Court looked at copyright’s creativity requirement in Feist Publication v. Rural Telephone Service, 499 U.S. 340 (1991). In this case, the Court wrote that works must have “at least some minimal degree of creativity” to qualify for copyright protection. Admittedly, this requirement is very small — the court says only “a modicum of creativity” is necessary. Still, even though it may be minimal, it certainly exists. Indeed, in Feist, the Court held that a mere alphabetical arrangement of names did not contain enough creativity for copyright protection. So, even though the amount required may be small, creativity is something we need to pay attention to. 

Sebastian Tomczak’s story clearly raises the creativity issue. Is a recording of white noise sufficiently creative to justify giving its creator a copyright monopoly over it? My gut reaction is “no way!” Isn’t it just fuzz? How is that creative at all? You can’t get a copyright just because you record the sound a radio makes when it can’t pick up a channel; That’s crazy talk!

But, let’s test my reaction. Perhaps I’m undervaluing the white noise recording because I don’t “get” it. For example, there is a Japanese artists who calls himself Merzbow who creates songs from feedback, distortion, and another noises that aren’t generally thought of as “music.” I may not enjoy his works, but that doesn’t mean they shouldn’t be protected by copyright.

Indeed, we need to remember that copyright doesn’t care about the quality of works. For instance, I own an album called Symphony #2 for Dot Matrix Printers which is comprised entirely of the clicking and clacking of old printers. I know only two people who enjoy it: me and my friend who introduced it to me. However, even though you may not like the music doesn’t mean it’s not a creative work. In fact, I’d argue it took an incredible degree of creativity to create such a unique piece of music.

Perhaps the white noise recording is similar. Perhaps it was specially crafted by the creator to achieve some sort of reaction in its listeners. Perhaps it’s creative in some way that I can’t see. And then perhaps it deserves copyright protection.

That said, we need to remember that copyright law also doesn’t care how much effort went into creating something. In Feist, the Court rejected the “sweat of the brow” doctrine that holds that “copyright was a reward for the hard work” of creating something. Instead, copyright rewards original creative works, no matter how hard it is to create them. 

I think this is particularly relevant when looking at whether a white noise recording should have copyright protection. I think this question requires us to ask how they were made. Did the creator craft the white noise in some way? Did he/she do so to elicit a response in the listener? If so, perhaps this is a creative work. Or is the noise computer generated? Did the creator simply record mechanical feedback? If so, this doesn’t seem creative enough for copyright. Or, did it take a lot of work to create this recording, but it’s not creative at all. If so, then it doesn’t seem to be enough for copyright.  

If I had to guess, I’d still say that this white noise copyright claim is no good. I’d guess this recording was not specially crafted to be creative in some way. Indeed, I think it would be hard to prove that it is, in fact, creative, and not just the product of hard work. However, we need to remember that it may be possible for noise art to be creative. And in that, a white noise recording may deserve copyright protection.

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