Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX: Lecture 1.2, The Foundations of Copyright Law: Originality

William Fisher, CopyrightX: Lecture 1.2, The Foundations of Copyright Law: Originality


To be entitled to
copyright protection, something must be original. That term encompasses two
distinct requirements. The first is
independent creation. If you copy your work
from someone else, you can not assert
a copyright in it. Suppose, for example, that
you read a poem and like it. You memorize it, then you
write it down verbatim. Someone photocopies the
piece of paper on which you have written down the poem. Do you have a copyright
claim against the person who makes the photocopy? No. The author who first created
the poem might, but you don’t. That’s certainly true
if the poem is recent and still covered by copyright. But what if the poem is old and
no longer covered by copyright? You still have no claim
against the person who makes the photocopy, because
your work is not original. Here’s a more plausible example:
Rodin’s famous sculpture, “The Thinker,” was
created in 1902 — and thus (as we will see) is
no longer subject to copyright protection. Suppose that you make a
perfect replica of The Thinker. Do you have a copyright
in your replica? In other words, if someone
copies your replica, do you have a legal claim
against the copyist? No. The same principle applies
— certainly in the US and probably in
other countries — if you take a photograph
of an old painting, like the Mona Lisa, trying to
recreate the painting exactly. This is not a
hypothetical example. A few years ago, there was
a sharped-edged controversy between the National
Portrait Gallery in England and one Derrick Coetzee, who
uploaded to Wikipedia some 3000 high-resolution photos, taken
by the Portrait Gallery, of old paintings
in its collection. Coetzee invoked this principle
when resisting, successfully, the Gallery’s copyright claims. Because the photos
lacked originality, they were not
shielded by copyright. As we will see later,
the question becomes more complicated if your replica
or painting of a public-domain work is not perfect
— in other words, if you have made changes to The
Thinker or altered the colors of the Mona Lisa. But if your replica is
verbatim, you have no rights. So, to repeat, the first
of the two requirements encompassed by the
term originality is independent creation. The second requirement
is creativity. To be entitled to
copyright protection, a work must embody a modest
amount of creativity. Not much, but some. This is the more
interesting and subtle of the meanings of
originality, and we’ll spend a fair amount
of time exploring it. Before doing so, however, we
need to identify some related characteristics that are
not required for copyright protection — and
consider why not. Once we have cleared
away this underbrush, we’ll return to the
question of creativity. The first thing not encompassed
by the Originality requirement is novelty. To be protected in
the United States, a work does not have to be new. In this respect,
copyright law is very different from patent law. To be patentable, an
invention must be new. To be protected by copyright,
a literary or artistic work need not. The classic statement of
this principle in US law appears in the Sheldon case,
decided by the Second Circuit Court of Appeals. Because Judge Hand’s
language is involuted, I’ll put in up on the screen: Borrowed the work
must indeed not be, for a plagiarist is not
himself pro tanto an “author”; but if by some magic, a man
who had never known it were to compose anew Keats’s
Ode on a Grecian Urn, he would be an “author,”
and, if he copyrighted it, others might not copy that poem,
though they might of course copy Keats’s. In other words, if
your creation is identical to an
already existing work, but you are genuinely unaware
of that existing work, your creation is original,
and you get the benefit of copyright protection. Novelty is not necessary. To be sure, as Professor
Paul Goldstein observes, lack of novelty, though
not itself fatal, may sometimes be
introduced in litigation to undermine other aspects
of a plaintiff’s case. For example, it can be used
to rebut a presumption that the plaintiff’s work was
independently created — which, as we’ve seen, is required
for copyright protection. Or a defendant can
sometimes use the fact that the plaintiff’s work
is not novel to argue that the defendant did not
copy the plaintiff’s work, but instead copied
the preexisting work. That’s the import of
the last clause in Judge Hand’s statement — “though they
might of course copy Keats’.” If true, that would get
the defendant off the hook. The upshot is that, in practice,
novelty helps a plaintiff, and lack of novelty can hurt. But strictly speaking,
novelty is not required for
copyright protection. Another thing that is not
required for copyright protection — at least in the
United States –is intent to be original. To get the benefit of
copyright protection, it’s not necessary
that you, the author, try to create
something of your own. It’s only necessary
that you do so. The classic statement of this
principle in US law comes in an opinion by Judge Jerome
Frank in the 1951 Alfred Bell case, which held that, even
if mezzotint engravings of old (public-domain) paintings
differed from the originals only inadvertently, they
were still copyrightable. “A copyist’s bad eyesight
or defective musculature, or a shock caused by
a clap of thunder, may yield sufficiently
distinguishable variations. Having hit upon such a
variation unintentionally, the ‘author’ may adopt it
as his and copyright it.” As you might imagine, this
issue doesn’t arise often, and one can find some
judicial opinions that seem to cast doubt upon it. But the principle
expressed by Judge Hand is the canonical view
in the United States. A third thing not required
for copyright protection is that the work in
question be artistic. If your creation is bad
art — or not art at all — you still get a copyright in it. The classic statement
of this principle comes in the 1903
Bleistein case, which involved a copyright
claim to 3 circus posters, one of which
is shown on the screen. In some famous passages in the
majority opinion in that case, Justice Holmes rejected
the defendant’s argument that these posters did not
enjoy copyright protection because they did not
constitute “fine art.” In US law, Bleistein
has come to stand for the principle
sometimes referred to as “aesthetic neutrality.” When applying copyright law, the
quality or artistic character of both the plaintiff”s work and
the defendant’s work are said to be irrelevant. A child’s finger paintings
are as deserving of copyright protection as the Mona Lisa. Why? What might justify this stance
of strict aesthetic neutrality? Defenders of this principle
commonly make four arguments. The first is that
judges (or juries) who would be called
upon to assess the merit of either the
plaintiff’s or the defendant’s works, lack the
expertise to do so. Justice Holmes emphasizes
this point in Bleistein: “It would be a
dangerous undertaking for persons trained
only to the law to constitute themselves
final judges of the worth of pictorial illustrations,
outside of the narrowest and most obvious limits. At the one extreme
some works of genius would be sure to
miss appreciation. Their very novelty would
make them repulsive until the public had
learned the new language in which their author spoke. It may be more than
doubted, for instance, whether the etchings of Goya
or the paintings of Manet would have been sure
of protection when seen for the first time. At the other end,
copyright would be denied to pictures
which appealed to a public less educated than the judge.” The second argument,
latent in the last sentence of Holmes’ passage,
is fear of elitism — worry that an upper class would
use the opportunity to assess artistic quality to impose
their tastes on the rest of the population. The third, related argument
is fear of paternalism — or what has come more recently
to be called parentalism. This argument is tied to the
political theory of liberalism, which continues to have
considerable sway at least in western democratic societies. The basic idea is that
governments should not impose on their citizens any particular
conception of the good — or the good life
in particular — but rather should create
conditions in which people are free to formulate and
pursue their own conceptions of the good. One implication of that
idea, it is sometimes argued, is that the law —
specifically copyright law — should not promulgate a
particular conception of what counts as worthy art. In the United
States, this attitude finds expression in
periodic campaigns to abolish the
National Endowment for the Arts, which distributes
government funds to artists. Most other countries are less
hostile to government support for the arts. The final argument in
favor of the principle of aesthetic neutrality
is that, to decide what constitutes good art,
one needs to know what art is, and there’s deep disagreement
on that crucial question. As Professor Fred
Yen has pointed out, at least three different
meanings of art are in widespread circulation. Formalism, exemplified by
the work of Clive Bell, defines art as things capable
of provoking in sensitive people the aesthetic emotion. Some objects have formal
qualities that enable them to cause this reaction
while others don’t. Only the former count as art. By contrast
intentionalism, exemplified by the work of Monroe
Beardsley, defines art as “something produced with
the intention of giving it the capacity to satisfy
the aesthetic interest.” So, for example, whether
people moving in a circle are engaged in a form of
art depends on the nature of their motivation. Their purpose might be
religious (as in a ceremony), it might be political or
economic (as in a picket line), or it might be artistic
(as in the dance). Only if their intention
falls into the last category does their behavior
constitute art. Finally, institutionalism,
exemplified by the work of George Dickie, emphasizes
the role of the “art world” — “”[t]he broad social institution
in which works of art have their place.” The members of this world
include artists and viewers who participate in the
traditional social practice of creating, presenting,
and appreciating art. Against this backdrop,
“objects become art when someone who believes that
he is a member of the art world invites others to view
the object aesthetically.” In the simplest case, an
object constitutes art if a museum chooses
to display it. These 3 approaches —
formalism, intentionalism, and institutionalism —
are in obvious tension. Some objects or
activities qualify as art under one approach,
but not under others. If aesthetic theorists cannot
resolve this crucial question, surely it would be foolish for
the law to attempt to do so. So those are the 4
arguments commonly deployed in support
of the principal of aesthetic neutrality. Lack of expertise,
unease about elitism, hostility to governmental
involvement in art, and uncertainty concerning
what constitutes art in the first place. However, as we will
see, the principle of aesthetic neutrality
is frequently violated-tacitly and
occasionally expressly-even in the United States,
which purports to adhere to the
principle most faithfully. Judges and juries find ways
to favor plaintiffs who have created what they
consider meritorious works, and to disfavor plaintiffs who
have created what they consider bad or unimpressive material. On the other side of the
ledger, judges and juries find ways to penalize defendants
whose work seems poor, and to give extra latitude
to defendants whose work seems worthy of respect. Professor Yen and others argue
that, if judges and juries are going to be making
such judgments, they should do so
expressly-and should be obliged to justify their judgments. This is a fairly
fundamental issue, on which, as we will see,
countries differ sharply. By the end of the
series of lectures, I hope you are in
a position to form your own opinion
concerning the scope and merits of the principle
of aesthetic neutrality. Yet another characteristic
not required for copyright protection is
that a work be noncommercial. This is not quite as
obvious as it might seem. For example, Justice Harlan,
in a dissenting opinion in the Bleistein case,
suggested that advertisements will be produced in at least
optimal quantities, regardless of whether they are
protected by copyright. In other words, copyright
protection for ads is unnecessary. Whatever the merits of Harlan’s
position, it has been rejected. Today, advertisements
definitely enjoy the protection of the copyright law. A final characteristic
not required for copyright protection
in the United States is that the content
of a work be lawful. So, for example, it’s
now reasonably clear that, in the US,
obscene, libelous, or fraudulent material
enjoys copyright protection. In this respect,
US copyright law differs sharply from
US trademark law, which denies protection to
immoral or scandalous marks. Copyright law purports to
have no such exclusions. Having listed the things
that copyright does not require, let’s now return
to what it does require. As I mentioned
earlier, to satisfy the requirement of originality,
a work must pass two tests: it must be
independently created, and it must embody some
degree of creativity. The more important and
slippery of these tests relates to creativity. How much do you need? In the United
States, very little. In its 1991 decision
in the Feist case, the Supreme Court
put it this way: A work must possess “at
least some minimal degree of creativity. To be sure, the requisite level
of creativity is extremely low; even a slight
amount will suffice. The vast majority of works
make the grade quite easily, as they possess some creative
spark, ‘no matter how crude, humble or obvious’ it might be.” As the Court notes,
it’s pretty easy to pass the test
formulated in this way. Take photographs, for example. In 1884, the Supreme
Court ruled that this staged studio photo
of Oscar Wilde enjoyed copyright
protection, emphasizing the many forms of creativity
that went into setting up and producing the photo. Today, it’s clear that nothing
so elaborate is necessary. In the US, a snapshot taken
with a modern automated point-and-shoot camera
contains enough creativity to satisfy the Feist standard. The modest creativity
involved in deciding what to point the camera at, and
when to activate the shutter, is enough. But some degree of
creativity is necessary. The most important effect
of this requirement is to withdraw
copyright protection from works whose form is
entirely conventional, even if they required lots of
effort and/or skill to create. At one point, courts in the
US (and in other common-law countries) extended copyright
protection to such works under the auspices of the so-called
‘sweat-of-the-brow” theory. Since the 1991 Feist
decision, that doctrine has been formally
rejected by US courts. I hasten to add that,
in practice, it’s not so clear that a plaintiff’s
labor does him no good when seeking copyright protection. Despite the formal repudiation
of the sweat-of-the-brow theory, in borderline cases,
some courts still pay attention to the effort that authors
have invested in their works. Again, this is a
general theme we’ll return to in lecture
#2, when we take up the Fairness and Personality
Theories of Intellectual Property. Thus far, I have
confined my attention to the interpretation of
the originality requirement in the United States. Now let’s examine some
other jurisdictions. Today, every
country in the world treats originality as
an essential requirement for copyright protection. But not all define
“originality” the same way. A few decades ago, countries’
disagreement on this issue was sharp. Generally speaking, countries
influenced by the common-law tradition set the bar
very low, while countries influenced by the civil-law
tradition were more demanding. The two fields where this
disagreement mattered most were photography and software. As mentioned above, in
the US and its cousins, virtually all photos
taken by people have long enjoyed
copyright protection. By contrast, as Roman Heidinger
has observed, in Austria photographs were given
copyright protection only if they differed
substantially from pre-existing photographs. Applying that standard,
a conventional photo showing some bikers in a
landscape failed to qualify. Likewise, as we will
see in Lecture #3, software programs received
generous protection in the US and its cousins. In Germany, by contrast,
software programs were accorded
copyright protection only if they embodied
degrees of creativity greater than that exercised
by average programmers. Recently, the divergence
among countries on these and related
issues has decreased. As you can see from the map,
most common-law countries have now repudiated the
permissive “sweat of the brow” approach and adopted stances
similar (though not always identical) to the approach
taken by the US Supreme Court in Feist. Meanwhile, harmonization
within the European Union has resulted in a modest
softening of the requirements that some of the member
countries previously enforced. In a series of decisions,
the European Court of Justice has announced and then refined
a new, general definition of originality. Under this new approach,
two related things (in addition to
independent creation) seem both necessary
and sufficient: — the creation reflects
the author’s personality; — the author, when
creating the work, was able to express her creative
ability by making unconstrained choices and thus impressing
her personal touch on the work. The articulation of this
standard by the European Court of Justice has caused courts in
several of the member countries of the EU to adjust their
originality thresholds — in most cases downward. In Austria, for
example, it’s now easier to secure copyright protection
for modestly creative photos than it used to be. And in Germany, a larger
set of software programs are now eligible for
copyright protection; the only things now excluded
are simple, routine programs that ordinary programmers
would write the same way. In combination, the
harmonization process in Europe and the trend among
common-law countries to abandon the sweat
of the brow theory has reduced the divergence
among the countries of the world concerning
the meaning of originality. But some divergence remains. For example, the European
standard alludes to a theme that US lawmakers
generally ignore — namely, the degree to which a work
reflects the personality of the creator — a topic we’ll
return to in the next lecture. And there remain
outlier countries. For example, South
Africa and New Zealand still seem to adhere to the
sweat of the brow approach. At the other extreme, courts
in Switzerland pay attention, when considering originality,
to the degree of “statistical uniqueness” of the
work in question — an approach that suggests
concern with the novelty of the work, a consideration
ignored in the overwhelming majority of countries. The upshot is that
some works are more likely to secure copyright
protection in some countries than in others.

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