Originality

“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
17 USC §102(b)

“Several categories of material are generally not eligible for federal copyright protection. These include among others:

  • works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
  • titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
  • ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

U.S. Copyright Office, Circular 1

“Titles, short phrases, and formatting are not copyrightable.”
U.S. Copyright Office, Circular 14

“Copyright does not preclude anyone from using the ideas or information disclosed in a copyrighted work.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“copyright does not prevent subsequent users from copying from a prior author’s work those constituent elements that are not original..”
— HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 53

“[there is broad scope for copyright in photographs because] a very modest expression of personality will constitute sufficient originality.”
— BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)quoting Nimmer 2.08[E][1], at 2-130.

“Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.”
U.S. Copyright Office, FL-102: Fair Use

“[No copyright] where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying.”
— BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)quoting Nimmer 2.08[E][2], at 2-131.

“..exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.”
Wikipedia, Bridgeman Art Library v. Corel Corp.

“[even] an overall impression of similarity [does not establish infringement if it] flows from similarities as to elements that are not themselves copyrightable.”
— Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir. 2005).

“the range of protectable expression is constrained [by the commonplace] subject-matter idea of the photograph.”
— Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003).

“The work must be original in the sense that the author produced it by his own intellectual effort, as distinguished from merely copying a preexisting work. It need not be novel (as a patentable invention must be); in theory at least, it could be precisely the same as a preexisting work as long as it was created by the author independently. (2) The work must represent an appreciable amount of creative authorship.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“It is well established, by a long line of court decisions, that in order to be copyrightable .. The work must be a product of original creative authorship.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. . . . 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. . . . Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. . . .

Originality is a constitutional requirement. The source of Congress’ power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to “secur[e] for limited Times to Authors .. the exclusive Right to their respective Writings.” . . .

It is this bedrock principle of copyright that mandates the law’s seemingly disparate treatment of facts and factual compilations. . . . This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its “maker” or “originator.” 111 U.S., at 58, 4 S.Ct., at 281. . . .

Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. . . . Thus, even a directory that contains absolutely no protectable written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.

This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected.

..if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them.

copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.

only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will.

— Justice O’CONNOR, FEIST PUBLICATIONS, INC. V. RURAL TELEPHONE SERVICE COMPANY, INC.499 U.S. 340, 111 S.Ct. 1282 (1991) Supreme Court of the United States

“Materials produced solely by nature, by plants, or by animals are not copyrightable.”
U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.02(b) Human author

Next: Fair Use »

“Where common sources exist for the alleged similarities, or the material that is similar is otherwise not original with the plaintiff, there is no infringement.”
— Alexander v Haley, 1978

“The skeleton of a creative work rather than the flesh, are not protected by the copyright laws.”
— Alexander v Haley, 1978

“The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. See Harper and Row, supra, at 547-549. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”
— Feist, 1991

“To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.”
— Feist, 1991

“Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.”
— Feist, 1991

“The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.”
— Feist, 1991

“there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. .. It is not only unoriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.”
— Feist, 1991

“As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.”
— Feist, 1991

“As a statutory matter, 17 U. S. C. § 101 does not afford protection from copying to a collection of facts that are selected, coordinated, and arranged in a way that utterly lacks originality.”
— Feist, 1991

“..copyright rewards originality, not effort.”
— Feist, 1991

Next page: Scènes à Faire

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