Class 3: Originality

Originality & Fixation

In Class 2, we learned that copyright protection requires both originality and fixation.

Originality and fixation are statutory requirements for copyright protection, because the Copyright Act provides that copyright only protects "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a).

But originality and fixation are also constitutional requirements for copyright protection. The Intellectual Property Clause of the United States Constitution authorizes Congress:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Article I, Section 8, Clause 8.

In other words, the Constitution only authorizes Congress to protect the "writings" of "authors." The Supreme Court has held that "writings" requires fixation and "authors" requires originality.

In this class and in Classes 4 and 5, we will examine the originality requirement. In Class 6, we will examine the fixation requirement.

Originality

We also learned that originality requires both creation and creativity. As the Supreme Court held in Feist v. Rural, 499 U.S. 340, 345-47 (1991):

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."

But when is a work independently created, and what does creativity actually require?

Independent Creation

The independent creation requirement provides that an original work is created by an author. "'Original' in reference to a copyrighted work means that the particular work 'owes its origin' to the 'author.'" Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102 (2d Cir. 1951). In other words, a work is independently created if and only if it is not a copy of something else.

Notably, independent creation does not require uniqueness, ingenuity, or novelty. As the Supreme Court explained in Baker v. Selden, 101 U.S. 99, 102-103 (1879), the copyright in a work, "if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright."

Independent creation only requires some non-trivial contribution by the author of a work. As the Supreme Court recognized in Catalda:

It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. Accordingly, we were not ignoring the Constitution when we stated that a "copy of something in the public domain" will support a copyright if it is a "distinguishable variation"; or when we rejected the contention that "like a patent, a copyrighted work must be not only original, but new", adding, "That is not * * * the law as is obvious in the case of maps or compendia, where later works will necessarily be anticipated." All that is needed to satisfy both the Constitution and the statute is that the "author" contributed something more than a "merely trivial" variation, something recognizably "his own." Originality in this context "means little more than a prohibition of actual copying." No matter how poor artistically the "author's" addition, it is enough if it be his own. 

Catalda, 191 F.2d at 102-03 (citing Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903) (footnotes omitted). So, a distinguishable variation of an existing work is independently created, although it may infringe on any copyright in the existing work.

In fact, a work that is identical to an existing work may still be independently created, so long as it was not actually copied from that work. As Judge Learned Hand explained in Sheldon v. MetroGoldwyn Pictures Corp., 81 F.2d 49, 53-54 (2d Cir. 1936):

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.

Questions:

1. What does it mean for a work to "owe its origin" to an author? In what way does a "distinguishable variation of an existing work" owe its origin to an author? What elements of a work can copyright protect? 
2. Patents can only protect novel inventions, and prohibit any unauthorized use of a patented invention, even if the user independently created the invention. Why doesn't copyright require novelty? Why does it protect independently created works that are identical to existing works?
3. According to Judge Hand, if an author independently creates a work that is identical to a public domain work, copyright prohibits copying the independently created work, but permits copying the public domain work. Does this make any sense?

Facts

The independent creation requirement also provides that copyright cannot protect facts, because facts are not created by an author. As the Supreme Court recognized in Feist:

"No one may claim originality as to facts." [Nimmer, Copyright], § 2.11[A], p. 2-157. 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. "The discoverer merely finds and records." Nimmer § 2.03[E]. Census-takers, for example, do not "create" the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Colum. L. Rev. 516, 525 (1981) (hereinafter Denicola). Census data therefore do not trigger copyright because these data are not "original" in the constitutional sense. Nimmer § 2.03[E]. The same is true of all facts -- scientific, historical, biographical, and news of the day. "They may not be copyrighted and are part of the public domain available to every person." [Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir. 1981)].

499 U.S. 340, 347-48 (1991).

Prior to Feist, many courts had extended copyright protection to facts, on the ground that it rewarded the work of gathering and compiling facts. For example, in Jeweler's Circular Publishing Co. v. Keystone Publishing Co., the Second Circuit held:

The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number, acquires material of which he is the author.

281 F. 83, 88 (2d Cir. 1922). See also Leon v. Pacific Telephone & Telegraph Co., 91 F. 2d 484 (9th Cir. 1937).

This justification for copyright protection was known as the "sweat of the brow" doctrine, because it based copyright protection on the labor of the author, rather than the originality of the work. Under the "sweat of the brow" doctrine, copyright protected the facts gathered by an author, so subsequent authors could not copy those facts without permission. In other words, the only way to use copyrighted facts without infringing was to gather them again.

In Feist, the Supreme Court explicitly rejected the "sweat of the brow" doctrine, pointing out that it was inconsistent with "the most fundamental axiom of copyright law -- that no one may copyright facts . . . ." Feist, 499 U.S. at 353. The "sweat of the brow" doctrine not only violated the constitutional requirement of originality by protecting facts, but also created pointless inefficiency by requiring authors to rediscover known facts. According to the Feist court, it "handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works."

Questions:

1. Are you convinced by the Court's holding that facts are not independently created by an author? What is a fact? 
• Consider the statement, "The population of Kentucky is 4.38 million people." Is that a fact? Is the statement a report, or a truth-claim?
• Consider the statement, "Brian is hungry."
• Consider the statement, "I am hungry."
2. Facts are valuable, but costly to gather. The "sweat of the brow" doctrine was intended to encourage people to gather facts by giving them a property interest in their labor. Will people continue to gather facts if their labor is not protected? 
3. Journalists are in the business of gathering facts. How has the Internet affected journalism?

The Idea/Expression Dichotomy

Finally, the independent creation requirement provides that copyright can protect an expression of an idea, but not the idea itself:

The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts." Art. I, § 8, cl. 8. Accord Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. [Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57 (1985).] This principle, known as the idea-expression or fact-expression dichotomy, applies to all works of authorship.

Feist, 499 U.S. at 349-50. As the Supreme Court explained in Harper & Row: "No author may copyright facts or ideas. The copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality." 471 U.S. at 547-548.

Section 102(b) of the Copyright Act also provides that copyright cannot protect ideas:

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 U.S.C. § 102(b).

The purpose of the "idea/expression dichotomy" is to ensure that copyright protects an author's original expression of an idea, but enables the public to use the idea itself. "This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." Feist, 499 U.S. at 350.

Questions:

1. In Feist, the Supreme Court held that copyright cannot protect facts and ideas because they are not original. Do you agree?
2. Why can't copyright protect an idea? Can an idea be original? Is an idea a fact?

Creativity

The Feist Court also held that originality requires creativity, but emphasized that the amount of creativity required is very small:

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.

499 U.S. at 345 (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 1.08 [C] [1] and 2.01[A], [B] (1990)). Unfortunately, it did not define creativity or explain how to identify it.

Questions:

1. When is a work creative?
2. What does the creativity requirement add to the independent creation requirement?

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)

MR. JUSTICE HOLMES delivered the opinion of the Court. 

This case comes here from the United States Circuit Court of Appeals for the Sixth Circuit by writ of error. Act of March 3, 1891, 26 Stat. 828, s. 517, § 6. It is an action brought by the plaintiffs in error to recover the penalties prescribed for infringements of copyrights. Rev.Stat. §§ 4952, 4956, 4965, amended by Act of March 3, 1891, 26 Stat. 1109, c. 565, and Act of March 2, 1895, 28 Stat. 965, c. 194. The alleged infringements consisted in the copying in reduced form of three chromolithographs prepared by employees of the plaintiffs for advertisements of a circus owned by one Wallace. Each of the three contained a portrait of Wallace in the corner, and lettering bearing some slight relation to the scheme of decoration, indicating the subject of the design and the fact that the reality was to be seen at the circus. One of the designs was of an ordinary ballet, one of a number of men and women, described as the Stirk family, performing on bicycles, and one of groups of men and women whitened to represent statues. The circuit court directed a verdict for the defendant on the ground that the chromolithographs were not within the protection of the copyright law, and this ruling was sustained by the circuit court of appeals. Courier Lithographing Co. v. Donaldson Lithographing Co., 104 F. 993. 

There was evidence warranting the inference that the designs belonged to the plaintiffs, they having been produced by persons employed and paid by the plaintiffs in their establishment to make those very things. Gill v. United States, 160 U. S. 426, 160 U. S. 435; Colliery Engineer Company v. United Correspondence Schools Company, 94 F. 152; Carte v. Evans, 27 F. 861. It fairly might be found also that the copyrights were taken out in the proper names. One of them was taken out in the name of the Courier Company and the other two in the name of the Courier Lithographing Company. The former was the name of an unincorporated joint-stock association formed under the laws of New York, Laws of 1894, c. 235, and made up of the plaintiffs, the other a trade variant on that name. Scribner v. Clark, 50 F. 473, 474, 475, S.C. sub nom. Belford v. Scribner, 144 U. S. 488. 

Finally, there was evidence that the pictures were copyrighted before publication. There may be a question whether the use by the defendant for Wallace was not lawful within the terms of the contract with Wallace, or a more general one as to what rights the plaintiff reserved. But we cannot pass upon these questions as matter of law; they will be for the jury when the case is tried again, and therefore we come at once to the ground of decision in the courts below. That ground was not found in any variance between pleading and proof, such as was put forward in argument, but in the nature and purpose of the designs. 

We shall do no more than mention the suggestion that painting and engraving, unless for a mechanical end, are not among the useful arts, the progress of which Congress is empowered by the Constitution to promote. The Constitution does not limit the useful to that which satisfies immediate bodily needs. Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53. It is obvious also that the plaintiff's case is not affected by the fact, if it be one, that the pictures represent actual groups -- visible things. They seem from the testimony to have been composed from hints or description, not from sight of a performance. But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. Blunt v. Patten, 2 Paise 397, 400. See Kelly v. Morris, L.R. 1 Eq. 697; Morris v. Wright, L.R. 5 Ch. 279. 

The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man's alone. That something he may copyright unless there is a restriction in the words of the act. 

If there is a restriction, it is not to be found in the limited pretensions of these particular works. The least pretentious picture has more originality in it than directories and the like, which may be copyrighted. Drone, Copyright 153. See Henderson v. Tompkins, 60 F. 758, 765. The amount of training required for humbler efforts than those before us is well indicated by Ruskin. 

"If any young person, after being taught what is, in polite circles, called 'drawing,' will try to copy the commonest piece of real work -- suppose a lithograph on the title page of a new opera air, or a woodcut in the cheapest illustrated newspaper of the day -- they will find themselves entirely beaten."

Elements of Drawing, first ed. 3. There is no reason to doubt that these prints, in their ensemble and in all their details, in their design and particular combinations of figures, lines, and colors, are the original work of the plaintiffs' designer. If it be necessary, there is express testimony to that effect. It would be pressing the defendant's right to the verge, if not beyond, to leave the question of originality to the jury upon the evidence in this case, as was done in Hegeman v. Springer, 110 F. 374. 

We assume that the construction of Rev. Stat. § 4952, allowing a copyright to the "author, designer, or proprietor . . . of any engraving, cut, print . . . [or] chromo," is affected by the act of 1874, 18 Stat. 78, 79, c. 301, § 3. That section provides that,

"in the construction of this act, the words 'engraving,' 'cut,' and 'print' shall be applied only to pictorial illustrations or works connected with the fine arts."

We see no reason for taking the words "connected with the fine arts" as qualifying anything except the word "works," but it would not change our decision if we should assume further that they also qualified "pictorial illustrations," as the defendant contends. 

These chromolithographs are "pictorial illustrations." The word "illustrations" does not mean that they must illustrate the text of a book, and that the etchings of Rembrandt or Muller's engraving of the Madonna di San Sisto could not be protected today if any man were able to produce them. Again, the act, however construed, does not mean that ordinary posters are not good enough to be considered within its scope. The antithesis to "illustrations or works connected with the fine arts" is not works of little merit or of humble degree, or illustrations addressed to the less educated classes; it is "prints or labels designed to be used for any other articles of manufacture." Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd, and therefore gives them a real use -- if use means to increase trade and to help to make money. A picture is nonetheless a picture, and nonetheless a subject of copyright, that it is used for an advertisement. And if pictures may be used to advertise soap, or the theater, or monthly magazines, as they are, they may be used to advertise a circus. Of course, the ballet is as legitimate a subject for illustration as any other. A rule cannot be laid down that would excommunicate the paintings of Degas. 

Finally, the special adaptation of these pictures to the advertisement of the Wallace shows does not prevent a copyright. That may be a circumstance for the jury to consider in determining the extent of Mr. Wallace's rights, but it is not a bar. Moreover, on the evidence, such prints are used by less pretentious exhibitions when those for whom they were prepared have given them up. 

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. Yet if they command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. See Henderson v. Tompkins, 60 F. 758, 765. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law. 

The judgment of the circuit court of appeals is reversed; the judgment of the circuit court is also reversed, and the cause remanded to that court with directions to set aside the verdict and grant a new trial. 

MR. JUSTICE HARLAN, dissenting: 

Judges Lurton, Day, and Severens, of the circuit court of appeals, concurred in affirming the judgment of the district court. Their views were thus expressed in an opinion delivered by Judge Lurton:

"What we hold is this: that if a chromo, lithograph, or other print, engraving, or picture has no other use than that of a mere advertisement, and no value aside from this function, it would not be promotive of the useful arts within the meaning of the constitutional provision, to protect the 'author' in the exclusive use thereof, and the copyright statute should not be construed as including such a publication if any other construction is admissible. If a mere label simply designating or describing an article to which it is attached, and which has no value separated from the article, does not come within the constitutional clause upon the subject of copyright, it must follow that a pictorial illustration designed and useful only as an advertisement, and having no intrinsic value other than its function as an advertisement, must be equally without the obvious meaning of the Constitution.

It must have some connection with the fine arts to give it intrinsic value, and that it shall have is the meaning which we attach to the Act of June 18, 1874, amending the provisions of the copyright law. We are unable to discover anything useful or meritorious in the design copyrighted by the plaintiffs in error other than as an advertisement of acts to be done or exhibited to the public in Wallace's show. No evidence, aside from the deductions which are to be drawn from the prints themselves, was offered to show that these designs had any original artistic qualities. The jury could not reasonably have found merit or value aside from the purely business object of advertising a show, and the instruction to find for the defendant was not error. Many other points have been urged as justifying the result reached in the court below. We find it unnecessary to express any opinion upon them in view of the conclusion already announced. The judgment must be affirmed."

Courier Lithographing Co. v. Donaldson Lithographing Co., 104 F. 993, 996. 

I entirely concur in these views, and therefore dissent from the opinion and judgment of this Court. The clause of the Constitution giving Congress power to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective works and discoveries, does not, as I think, embrace a mere advertisement of a circus. 

MR. JUSTICE McKENNA authorizes me to say that he also dissents.

Questions:

1. In Bleistein, Justice Holmes stated, "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." Based in part on that statement, courts have adopted the "principle of aesthetic non-discrimination." In other words, courts assume that the aesthetic value of a work is irrelevant to the originality analysis. Do you agree? Is the principle of aesthetic non-discrimination compatible with the creativity requirement? 
2. Should copyright protect commercial works? Why or why not? 
3. How does copyright protection of commercial works encourage innovation? Who should determine whether it encourages innovation? Why do commercial artists want copyright protection? 
4. In Class 2, we discussed Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), in which the Supreme Court held that copyright could protect a photograph because the photographer exercised creative control over its creation. Is this consistent with the principle of aesthetic non-discrimination expressed in Bleistein?
5. Is Burrow-Giles consistent with Holmes's statement, "Others are free to copy the original. They are not free to copy the copy"?