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The sweat of the brow doctrine was an early theory of copyright justification whereby an author was granted rights to a work as a reward for his or her efforts in creating the work. Unlike modern U.S. copyright law, creativity and originality were not required, only mere effort and diligence. However,

The Supreme Court has disapproved the "sweat of the brow" standard, explaining that its defect lies in the fact that the copyright laws were never intended to protect information merely for the reason that it may stem from effort or labor. [1]

The questions are then whether Congress can provide protection for “sweat” or investment without creativity under a different Article I power, most likely under the Commerce Clause,[2] and whether any such protection must incorporate a limited term. The answers to these questions are not entirely clear. They may depend in part on the form of protection that is chosen, and the extent to which it differs from copyright in both end and means.


  1. Bellsouth Advertising & Publishing Corp. v. Donnelley Info. Publishing, Inc., 933 F.2d 952 (11th Cir. 1991) (full-text).
  2. U.S. Const., art. I, §8, cl. 3.

See also[]

Copyright protection of databases