Just How Creative Do You Need to Be?
By: Paul E. Thomas
August 2008
To be copyrightable, a work must fall into one of the categories recognized by Congress (see my prior “Copyright 101” posting for a complete list), it must exist in a tangible medium, and it must be original. But what does originality mean in regard to copyright?
One way of getting at the answer is through the most commonly quoted axiom of copyright law: copyright protects the expression of an idea but not the idea itself. Protection for ideas, if obtainable, lies in patent law, but under patent law, an idea must have novelty; that is, it must be the concrete rendering of a new idea that has not before been reduced to practice. Copyright does not require such a high standard of originality; it does not require “authors” (writers, artists, musicians, photographers, etc.) to conceive of something that has never been conceived before. Because copyright protects expression and not ideas, it follows that multiple creators can develop the same idea independently, and each of their individual expressions of that idea will be copyrightable because each will be deemed original. For example, if Shakespeare’s Othello were a modern work still protected by copyright, the existence of Othello would not prevent other playwrights from writing plays about the terrible effects that jealousy and unchecked suspicion can have on a marriage, as indeed many have. The originality standard under copyright requires independent creation and expression but not complete newness.
The independent creativity component does not address the amount of creativity required for copyright originality. Courts have emphasized that the amount of creativity required is small: “a modest grade of art,” “a distinguishable” and not just a “trivial” variation from an existing work, a “scintilla” of creativity (a chincilla? no!), a “spark” of distinctiveness, a “modicum” of creativity. In short, the bar is low. So, to create something copyrightable, you do not need to create something that has never before been penned on paper or brushed on canvas. Rather, you merely need to express your individuality, because, as Justice Oliver Wendell Holmes famously said in this context, “personality always contains something unique.”
Certain kinds of works have either been considered uncopyrightable from the outset, or they have been found to be uncopyrightable either due to public policy or due to their highly factual nature. Such works will be the topic of the next installment.