U.S. copyright law
In U.S. copyright law, the careful elaboration of private and public rights includes whether the work has sufficient originality to warrant protection. Protection of an unoriginal expression would do nothing to "promote the Progress of Science and useful Arts." To the contrary, by making it difficult or impossible to use expressions that were previously available, such protection would hinder new intellectual work. Accordingly, the U.S. Supreme Court has long interpreted the terms "authors" and "writings" to "presuppose a degree of originality."
For copyright purposes, "originality" has two requirements. First, the work must have been independently created by the author, as opposed to copied from another, previous work. A work can be original even if it closely resembles another work, "so long as the similarity is fortuitous, not the result of copying." In practice, the odds against an artist or author or musician creating a new work identical to an existing one, without knowing of the earlier work, are remote, and in cases involving suspiciously-similar works, where the later artist had access or opportunity to learn of the earlier work, courts have found the subsequent work infringing rather than original.
Second, the work must also possess "at least some minimal degree of creativity." The amount of creativity required for originality is extremely low; "a slight amount" of "creative spark" is all that is necessary, "no matter how crude, humble or obvious." Moreover, even if a work as a whole has sufficient creativity to be protectable, the law's concern for promoting public use of existing intellectual knowledge limits that protection to "those components of a work that are original to the author."
What qualifies as "original" for copyright purposes may not be considered "original" by, for example, those assessing the item's artistic, literary, or academic merit. Nor should "originality" be confused with "novelty," which is the touchstone of patent law, not copyright.
- Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (full-text), citing Trade-Mark Cases, 100 U.S. 82, 94 (1879) (full-text) ("while the word writings may be liberally construed * * * it is only such as are original, and are founded in the creative powers of the mind") and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58-59 (1884) (full-text) (copyright limited to "original intellectual conceptions of the author").
- Feist, 499 U.S. at 345-46 (citing Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936) (full-text) (noting that identical poems created by different poets ignorant of one another would both be original and copyrightable)).
- See, e.g., Bright Tunes Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976) (full-text).
- Feist, 499 U.S. at 345.
- Id. (citing 1 Melville Nimmer, Nimmer on Copyright §§ 2.01[A], [B] (1990)).
- Feist, 499 U.S. at 348.