About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

43 B.C. L. Rev. 193 (2001-2002)
Toward a Stricter Originality Standard for Copyright Law

handle is hein.journals/bclr43 and id is 205 raw text is: TOWARD A STRICTER ORIGINALITY STANDARD FOR COPYRIGHT LAW Abstract: In order to be copyrighted, a work of art must be original. Critics have persuasively argued that copyright law, at various phases in its evolution, has defined originality by applying a Romantic conception of authorship, according to which the author creates out of a wholly personal, original self. But, in contrast to the idealized, Romantic work, an actual work need only exhibit an extremely low level of originality in order to merit copyright protection. This Note attempts to resolve this apparent tension between theory and practice, arguing that the Romantic conception of authorship underlies the law's low originality standard. Further, the Note argues that the modern understanding of authorship, which recognizes that the outside world shapes the author's consciousness, furnishes a more appropriate model for originality jurisprudence. Accordingly, the Note concludes, a stricter originality standard is needed, which would serve to reinvigorate the public domain while protecting truly original works. INTRODUCTION In order to be copyrighted in the United States, an item must be an original work of authorship.1 This statutory requirement is implied in the Constitution's Copyright Clause, which authorizes Congress to protect the writings of authors so as to promote the Progress of ... the useful Arts.2 Originality is the very 'premise of copyright law.'3 In 1991, the United States Supreme Court stated the current originality standard: Original, as the term is used in copyright, means only that the work is independently created... and that it possesses at least some minimal degree of creativity.4 In order for a work to be copyrighted, it need only exhibit an extremely low level of original- ity.5 ' 17 U.S.C. § 102 (1994). 2 U.S. CONST. art. I, § 8, cl. 8; see Russ Versteeg, Rethinking Originality, 34 WM. & MARY L. REv., 801, 802-03 (1993). 3 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). 4 See id. at 345. 5 See id.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most