HOISTING
ORIGINALITY
Joseph
Scott
Miller
Sept.
2008
Abstract
Copyright’s
originality
standard
is
ripe
for
reappraisal.
Many
have
written
about
the
ex‐
pansion
of
copyright
exclusion
claims
into
the
everyday
lives
of
ordinary
folk
–
we
are
an
“infringement
nation,”
coated
in
“billowing
white
goo.”
(Tehranian
(2007);
Litman
(2008)).
Many
have
also
written
about
ways
to
cope
with
that
expansion,
from
strengthening
the
fair
use
privilege
to
trimming
the
derivative
work
right
to
rebuffing
legislative
term
exten‐
sions
(though
this
last
one
has
largely
failed).
A
few
have
tackled
the
matter
at
the
front
end
–
the
need
to
put,
as
it
were,
less
goo
in
the
billowing
machine.
(E.g.,
Hughes,
Size
Mat‐
ters
(2005);
Sprigman,
Reform(Aliz)ing
(2004)).
Virtually
no
one,
however,
has
gone
back
to
the
source
–
copyright’s
originality
standard.
Feist
tells
us
that,
at
least
as
a
constitu‐
tional
matter,
“the
requisite
level
of
creativity
is
extremely
low.”
499
U.S.
340,
345
(1991).
It
shouldn’t
be,
and
the
Copyright
Act’s
statutory
originality
requirement
gives
us
a
lever‐
age
point
for
exploration.
I
pattern
the
exploration
on
patent
law’s
refreshed
nonobvious‐
ness
requirement,
which
the
Supreme
Court’s
KSR
decision
(2007)
grounds
on
incenting
the
unconventional
and
unexpected.
Originality’s
creativity
component
should
do
the
same,
protecting
expression
in
direct
proportion
to
its
unconventionality.
Indeed,
the
con‐
ditions
that
justify
a
nonobviousness
requirement
for
useful
inventions
–
distilled
to
the
wisdom
that
“[w]ith
greater
rights
come
more
stringent
requirements
for
obtaining
the
rights”
(Duffy,
Inventing
Invention
at
10
(2007))
–
are
strikingly
similar
to
those
that
now
bear
on
creative
expression
(although
that
was
less
so
in
the
past).
I
also
highlight
the
wrong
turn
in
Bleistein
(1902),
where
Justice
Holmes
concluded
that
the
alternative
to
a
low
creativity
threshold
was
a
stifling
aesthetic
orthodoxy
policed
by
the
judiciary.
He
was
right
to
turn
away
from
such
orthodoxy,
of
course,
but
missed
a
third,
and
better
way
–
re‐
warding,
and
thus
encouraging,
the
heterodox
itself.
The
“Progress”
at
which
the
Constitu‐
tion
aims
is,
for
copyright
as
much
as
for
patent,
the
new
vista
to
which
we’re
led
by
the
heterodox
and
the
heretic.
We
can
hoist
statutory
originality
to
target
this
higher
aim.
1
“[T]o
make
the
copyright
turnstile
revolve,
the
author
should
have
to
deposit
more
than
a
penny
in
the
box.”
BENJAMIN
KAPLAN,
AN
UNHURRIED
VIEW
OF
COPY‐
RIGHT
46
(1966)
“With
greater
rights
come
more
stringent
requirements
for
obtaining
the
rights.”
John
F.
Duffy,
Inventing
Invention:
A
Case
Study
of
Legal
Innovation,
86
TEX.
L.
REV.
1
(2007)
Outline
I.
We’re
engulfed
in
widespread,
continual
copyright
infringement
liability
A.
“We
are,
technically
speaking,
a
nation
of
constant
infringers.”
John
Tehranian,
Infringement
Nation,
2007
UTAH
L.
REV.
537.
B.
“Copyrighted
works
are
today
used
in
many
ways
they
once
were
not.
There
is
a
giant
“grey
zone”
in
copyright,
consisting
of
millions
of
usages
that
do
not
fall
into
a
clear
category
but
are
often
infringing.
These
usages
run
the
gauntlet,
from
powerpoint
presentations,
personal
web
sites,
social
networking
sites,
church
services,
and
much
of
wikipedia’s
content
to
well‐
known
fan
guides.”
Tim
Wu,
Tolerated
Use,
31
COLUM.
J.L.
&
ARTS
617,
617
(2008)
(footnote
omitted).
C.
Coyright
has
expanded
in
three
dimensions,
two
legal
and
one
practical
1.
Legal
–
breadth
of
rights,
and
duration
of
rights
2.
Practical
–
pervasive,
low‐cost
computing,
much
of
it
networked
D.
Result
–
“Bounded
copyright
rights
have
flowed
out
all
over
the
place
like
so
much
frozen
yogurt
until
the
terrain
is
completely
covered
by
billowing
white
goo.
What
used
to
be
five
or
six
discrete
exclusive
rights
is
morphing
into
an
all‐purpose
general
use
right,
and
our
understanding
of
copyright
is
evolving
into
the
view
that
any
use
of
a
copyrighted
work
that
is
not
author‐
ized
by
the
copyright
owner
or
the
statute
is
infringement.”
Jessica
Litman,
Billowing
White
Goo,
31
COLUM.
J.L.
&
ARTS
587,
596
(2008)
II.
Ways
to
beat
back
the
billowing
white
goo?
A.
Many
have
proposed
ways
to
change
our
approach
to
copyright
scope
1.
Tighten
the
“substantial
similarity”
inquiry
2
Ann
Bartow,
Copyrights
and
Creative
Copying,
1
U.
OTTAWA
L.
&
TECH.
J.
75
(2003‐04);
Lydia
Pallas
Loren,
The
Pope’s
Copyright?
Aligning
In­
centives
With
Reality
By
Using
Creative
Motivation
to
Shape
Copyright
Protection,
69
LA.
L.
REV.
__
(2008)
2.
Strengthen
fair
use
defense
Loren,
Pope’s
Copyright?;
Gideon
Parchomovsky
&
Kevin
A.
Goldman,
Fair
Use
Harbors,
93
Va.
L.
Rev.
1483
(2007);
Wu,
Tolerated
Use
3.
Trim
derivative
work
right
Wu,
Tolerated
Use
B.
A
small
number
of
proposals
attack
the
problem
at
the
starting
gate.
1.
Creative
Commons
licensing
–
disclaimer
mechanism,
whole
or
part
2.
Chris
Sprigman,
Reform(Aliz)ing
Copyright,
57
STAN.
L.
REV.
485
(2004)
(new
formality
regime
to
prevent
copyright
rights)
3.
Justin
Hughes,
Size
Matters
(or
Should)
in
Copyright
Law,
74
FORDHAM
L.
REV.
575
(2005)
(developing
a
minimum
size
principle
for
“work”)
C.
What
virtually
no
one
has
done
is
returned
to
copyright
protection’s
most
basic
gateway,
the
originality
requirement.
1.
Originality
has
a
creativity
component:
“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
pos‐
sesses
at
least
some
minimal
degree
of
creativity.”
Feist
Publications,
Inc.
v.
Rural
Tel.
Serv.
Co.,
499
U.S.
340,
345
(1991).
2.
It’s
low:
“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.”
Feist,
499
U.S.
at
345.
3.
Is
it
too
low?
This
paper
argues
that
the
originality
requirement
is
too
low,
by
virtue
of
an
imprudently
permissive
creativity
component.
4.
In
arguing
that
it’s
too
low,
I
differ
sharply
from
what
I
take
to
be
the
mainstream
view
on
this
point.
See,
e.g.,
Russ
VerSteeg,
Originality
3
and
Creativity
in
Copyright
Law,
in
1
INTELLECTUAL
PROPERTY
&
INFOR‐
MATION
WEALTH:
ISSUES
&
PRACTICES
IN
THE
DIGITAL
AGE
1,
20‐21
(Peter
Yu
ed.,
2007).
[
I
know
of
only
one
piece
in
the
literature
that
argues
for
a
higher
originality
threshold
–
Ryan
Littrell,
Note,
Toward
a
Stricter
Originality
Standard
for
Copyright
Law,
43
B.C.
L.
REV.
193
(2001)
.
Littrell’s
piece,
while
interesting,
does
not
provide
an
af‐
firmative
statement
of
how
to
raise
originality
beyond
the
following:
“Judges,
then,
should
employ
aesthetic
pragmatism
in
originality
cases.”
Id.
at
225.
He
does
not
analogize
originality
to
nonobvious‐
ness
(or
any
other
aspect
of
patent
law),
as
I
do
here.
]
5.
Perhaps
the
reason
no
one
else
has
explored
the
possibility
of
elevat‐
ing
the
originality
threshold
is
that
Jessica
Litman’s
contention
that
originality
is
an
“apparition”
remains
quite
compelling
today,
nearly
20
years
after
she
published
it.
See
Jessica
Litman,
The
Public
Domain,
39
EMORY
L.J.
965,
1000‐12,
1023
(1990).
My
experience
with
patent
law
persuades
me
that
effortful
focus
on
breaking
past
convention,
predictability,
and
routine,
yields
social
benefits
great
enough
to
command
our
encouragement.
In
any
event,
I’m
happy
for
my
explo‐
ration
to
serve
as
a
reductio
ad
absurdum
in
Litman’s
favor.
III.
Technology
and
copyright
law
now
point
toward
a
higher
creativity
threshold,
closer
to
patent
law’s
nonobviousness
requirement
A.
Some
have
recognized
that
a
low
originality
requirement
fits
well
with
nar‐
row,
not
broad,
copyright
protection.
Prof.
Olson,
for
example,
both
recog‐
nizes
the
power
/
threshold
relationship
and
contrasts
it
with
patent
law:
“Copyright
is
a
severely
limited
form
of
protection.
That
is
not
to
say
that
a
copyright
cannot
be
valuable,
but
what
is
protected
by
copyright
is
suffi‐
ciently
narrow
that
in
assessing
the
originality
standards
to
be
applied
in
de‐
termining
whether
copyright
should
be
granted
it
is
important
not
to
lose
sight
of
the
nature
of
copyright
protection.
The
limited
nature
of
copyright
protection
also
requires
an
emphatic
rejection
of
any
comparison
with
pat‐
4
ents,
either
in
the
standards
to
be
applied
in
protecting
works
in
which
copy‐
right
is
claimed
or
in
identifying
the
parameters
of
copyright
protection.”
David
P.
Olson,
Copyright
Originality,
48
MO.
L.
REV.
29,
34
(1983).
B.
But,
25
years
later,
copyright
protection
isn’t
narrow
anymore.
Now,
it
is
much
closer
to
patent
law;
its
creativity
threshold
should,
correspondingly,
be
higher
too.
1.
Consider
Prof.
Duffy’s
account
of
patent
law’s
nonobviousness
requirement
in
terms
of
the
strength
of
patent
rights.
John
F.
Duffy,
Inventing
Invention:
A
Case
Study
of
Legal
Innovation,
86
TEX.
L.
REV.
1
(2007)
a.
Patent
law
formally
forbids
reproducing
the
claimed
invention,
with
no
defense
for
independent
creation.
Patent
law
protects
practical,
applied
ideas
across
many
embodiments
of
the
idea,
not
merely
a
particular
expression
of
an
idea.
b.
The
nonobviousness
requirement
–
a
creativity
threshold
that
bars
patent
protection
for
technologically
trivial
inventions
–
“prevent[s]
individuals
from
patenting
obvious,
yet
economi‐
cally
significant
responses
to
new
conditions
or
‘exogenous’
developments.”
Duffy,
Inventing,
at
12.
2.
Copyright
law
is
now
more
similar
to
patent
law
than
in
times
past
a.
As
a
formal
matter,
only
copying
of
the
protected
work
is
pro‐
hibited.
But
the
independent
creation
defense
has
been
hol‐
lowed
out:
Access
is
easier
to
prove
–
or,
at
least,
harder
to
disprove
–
than
ever,
given
pervasive
internet
distribution
of,
and
thus
access
to,
works.
Bartow,
Creative
Copying,
at
83‐84.
And
given
the
doctrine
of
unconscious
copying,
there
need
not
be
any
evidence
of
an
infringer’s
awareness
of
copying.
With
a
slipshod
approach
to
“substantial
similarity,”
one
is
well
on
the
way
to
a
liability
finding
…
and
something
much
closer
to
pro‐
tection
of
an
idea.
The
low
creativity
threshold
also
raises
the
5
likelihood
that
we
will
erroneously
extend
copyright
protec‐
tion
to
the
most
banal,
utility‐driven
expression.
For
example,
the
fact
that
the
parts
numbering
cases
(Southco,
Inc.
v.
Kane­
bridge
Corp.,
390
F.3d
276
(3d
Cir.
2004)
(en
banc);
ATC
Distri­
bution
Group
v.
Whatever
It
Takes
Transmissions
&
Parts,
Inc.,
402
F.3d
700
(6th
Cir.
2005))
looked
to
be
worth
litigating,
even
though
they
ended
in
defeat
for
the
purported
copyright
owners,
shows
the
degraded
state
of
the
originality
require‐
ment.
Ditto
for
the
recent
Meshworks
v.
Toyota
case.
b.
To
the
degree
that
we
set
originality’s
creativity
component
at
an
“extremely
low”
level,
copyright
owners
can
use
an
expres‐
sively
trivial
work
to
make
mischief
for
those
engaged
in
ex‐
pressive
activity
in
which
the
owner
wants
a
stake,
or
wants
to
suppress.
C.
We
need
to
hoist
originality
higher.
And
the
Supreme
Court’s
recent
foray
into
patent
law’s
nonobviousness
doctrine,
KSR
Int’l
Co.
v.
Teleflex
Inc.,
127
S.
Ct.
1727
(2007),
the
first
in
thirty
years,
inspires
me
to
focus
on
unconven‐
tionality
as
the
fitting
hallmark
of
creativity
for
copyright.
1.
In
KSR,
the
hallmark
of
obviousness
is
predictability:
““[W]hen
a
pat‐
ent
claims
a
structure
already
known
in
the
prior
art
that
is
altered
by
the
mere
substitution
of
one
element
for
another
known
in
the
field,
the
combination
must
do
more
than
yield
a
predictable
result.
…
[W]hen
the
prior
art
teaches
away
from
combining
certain
known
elements,
discovery
of
a
successful
means
of
combining
them
is
more
likely
to
be
nonobvious.
…
[A]
court
must
ask
whether
the
improve‐
ment
is
more
than
the
predictable
use
of
prior
art
elements
according
to
their
established
functions.”
127
S.
Ct.
at
1740.
2.
Adapting
KSR’s
perspective
to
copyright,
we
should
protect
expres‐
sion
to
the
degree
to
that
it
is
unconventional
or
unorthodox,
rather
than
pedestrian
or
routine.
Adapting
KSR
in
this
way
also
dovetails
6
with
the
Supreme
Court’s
rejection
of
copyright
for
telephone
white
pages
in
Feist
on
constitutional
grounds.
The
words
the
Court
used
in
Feist
to
describe
how
Rural’s
alphabetized‐by‐surname
white
pages
fell
short
of
the
constitutional
minimum
of
creativity
–
“entirely
typi‐
cal,”
“garden
variety,”
“devoid
of
even
the
slightest
trace
of
creativity,”
“could
not
be
more
obvious”
(!),
“an
age‐old
practice,
firmly
rooted
in
tradition
and
so
commonplace
that
it
has
come
to
be
expected
as
a
matter
of
course,”
“practically
inevitable”
–
sound
a
great
deal
like
the
way
the
Court
describes
unpatentable
inventions
in
KSR.
3.
Hoisting
originality
also
pulls
together
several
strands
of
copyright
doctrine
(e.g.,
the
Brandir
approach
to
conceptual
separability
in
the
useful
articles
cases;
merger;
scenes
a
fair;
the
musical
arrangement
cases)
as
part
of
a
deeper
pattern.
Indeed,
I’m
strongly
moved
not
only
by
KSR,
but
by
Prof.
Heald’s
analysis
of
the
musical
arrangement
cases
more
than
a
decade
ago.
Paul
J.
Heald,
Reviving
the
Rhetoric
of
the
Public
Interest:
Choir
Directors,
Copy
Machines,
and
New
Arrange­
ments
of
Public
Domain
Music,
46
DUKE
L.J.
241
(1996).
D.
We
should
focus
copyright’s
protection
on
those
who
take
the
greater
risk
of
investing
in
unconventional,
unorthodox
expression
and
succeed.
They
have
done
more,
comparatively,
to
foster
progress,
and
–
having
succeeded
where
others
feared
to
go
–
they
are
more
likely
to
inspire
imitative
competition.
IV.
How
did
we
get
here,
and
how
can
we
change
course?
A.
Taking
the
low
road
to
originality
1.
It’s
intriguing
that,
in
the
mid‐1800s,
the
creativity
threshold
for
copyright
and
patent
was
framed
in
similar
language
a.
Copyright
–
Jollie
v.
Jacque,
13
F.
Cas.
910
(C.C.S.D.N.Y.
1850)
(Case
No.
7,437)
(Nelson,
J.,
denying
copyright
injunction
in
a
musical
composition
case)
•
Discussing
originality
in
music
in
terms
of
“a
mere
mechanic
in
mu‐
7
sic,”
“a
writer
of
music
with
experience
and
skill,”
and
“[p]ersons
of
skill
and
experience
in
the
art”
b.
Patent
–
Hotchkiss
v.
Greenwood,
52
U.S.
248,
267
(1851)
(Nelson,
J.,
denying
patent
protection)
•
“unless
more
ingenuity
and
skill
in
applying
the
old
method
of
fas‐
tening
the
shank
and
the
knob
were
required
in
the
application
of
it
to
the
clay
or
porcelain
knob
than
were
possessed
by
an
ordinary
me‐
chanic
acquainted
with
the
business,
there
was
an
absence
of
that
de‐
gree
of
skill
and
ingenuity
which
constitute
essential
elements
of
every
invention.
In
other
words,
the
improvement
is
the
work
of
the
skilful
mechanic,
not
that
of
the
inventor.”
2.
Two
other
19th
century
cases
focused
on
the
degree
which
an
expres‐
sive
work
embodies
an
individual
person’s
recognizable
creativity.
They
leave
open
the
possibility
that
copyright’s
creativity
threshold
could
be
closer
to
patent
law’s.
•
The
Trade­Mark
Cases,
100
U.S.
82,
94
(1879):
“The
ordinary
trade‐mark
has
no
necessary
relation
to
invention
or
discovery.
The
trade‐mark
recognized
by
the
common
law
is
gener‐
ally
the
growth
of
a
considerable
period
of
use,
rather
than
a
sudden
invention.
…
If
we
should
endeavor
to
classify
it
under
the
head
of
writings
of
authors,
the
objections
are
equally
strong.
In
this,
as
in
re‐
gard
to
inventions,
originality
is
required.
And
while
the
word
writ‐
ings
may
be
liberally
construed,
as
it
has
been,
to
include
original
de‐
signs
for
engravings,
prints,
&c.,
it
is
only
such
as
are
original,
and
are
founded
in
the
creative
powers
of
the
mind.
The
writings
which
are
to
be
protected
are
the
fruits
of
intellectual
labor,
embodied
in
the
form
of
books,
prints,
engravings,
and
the
like.”
•
Burrow­Giles
Lithographic
Co.
v.
Sarony,
111
U.S.
53,
60
(1884):
Quoting
at
length
from
a
trial
court
finding
that
“show[ed]
this
photo‐
graph
to
be
an
original
work
of
art,
the
product
of
[Sarony’s]
intellec‐
8
tual
invention”:
“
‘plaintiff
made
the
same
*
*
*
entirely
from
his
own
original
mental
conception,
to
which
he
gave
visible
form
by
posing
the
said
Ocar
Wilde
in
front
of
the
camera,
selecting
and
arranging
the
costume,
draperies,
and
other
various
accessories
…’,”
etc.
3.
Bleistein
v.
Donaldson
Lithographing
Co.,
188
U.S.
239
(1902),
took
a
decisive
turn
toward
our
extremely
low
creativity
requirement.
It
need
not
have
done
so.
a.
Holmes
rightly
focuses
on
an
individual
person’s
unique
ex‐
pression,
at
250
:
“The
[first]
copy
is
the
personal
reaction
of
an
individual
upon
nature.
Personality
always
contains
some‐
thing
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.”
b.
But
he
wrongly
concludes
that
a
more‐than‐minimal
originality
inquiry
must
have
all
the
speech‐suppressing
danger
of
a
gov‐
ernment
orthodoxy,
at
251:
“It
would
be
a
dangerous
under‐
taking
for
persons
trained
only
to
the
law
to
constitute
them‐
selves
final
judges
of
the
worth
of
pictorial
illustrations,
out‐
side
of
the
narrowest
and
most
obvious
limits.”
c.
He
fails
to
distinguish
between
a
creativity
inquiry
that
looks
for
an
author’s
individual
voice
to
stand
apart
from
conven‐
tional
expression,
and
one
that
subjects
that
individually
rec‐
ognizable
voice
to
an
established
aesthetic
orthodoxy
as
the
price
of
protection.
One
can
avoid
imposing
an
orthodoxy
by
rewarding
the
unorthodox.
d.
Of
course,
at
the
time,
the
downside
cost
of
the
error
was
smaller
than
it
is
now.
4.
We
hit
rock
bottom
with
the
Alfred
Bell
&
Co.
v.
Catalda
Fine
Arts,
Inc.,
191
F.2d
99
(2d
Cir.
1951),
distinguishable
variation
standard,
which
9
embraces
even
involuntary
variation
as
a
mark
of
originality.
B.
Feist
sets
a
constitutional
floor,
but
it
doesn’t
construe
the
Act
–
which
could,
as
a
matter
of
statutory
construction,
require
more
than
the
minimum.
C.
The
Copyright
Act’s
signal
requirement
–
“
original
works
of
authorship,”
§
102(a)
–
leaves
“original”
undefined.
The
Act’s
legislative
history
pegs
the
term
“original”
to
then‐extant
caselaw,
at
least
some
of
which
embraced
a
creativity
standard.
(Russ
VerSteeg
surveys
the
mixed
bag
of
pre‐Act
cases,
in
the
course
of
arguing
against
any
reference
to
a
creativity
component
in
the
originality
inquiry.)
The
word
“original,”
however,
is
flexible
enough
to
allow
us
to
adapt
the
way
we
apply
the
principle
to
contemporary
circum‐
stances.
(Think
Jack
Balkin’s
“new
originalism,”
but
in
a
statutory
setting.)
V.
Is
there
a
First
Amendment
problem
with
hoisting
originality
to
reward
unconven‐
tional,
over
conventional,
expression?
A.
It
is
a
content‐based
distinction,
and
providing
copyright
protection
is
state
action.
B.
On
the
other
hand,
withholding
copyright
protection
does
not
suppress
speech,
so
much
as
it
allocates
more
state
support
for
some
speech
over
other
speech.
Although
I
am
just
beginning
to
explore
the
First
Amend‐
ment
cases
and
commentary,
it
appears
that
the
government
can
fund
selectively
the
speech
it
favors
(e.g.,
school
curriculum,
public
service
announcements).
C.
Also
analogous,
in
some
respects,
to
the
First
Amendment’s
compatibility
with
the
scandalous
matter
exclusion
from
Lanham
Act
registration
(al‐
though,
given
that
denial
of
registration
does
not
preclude
one
from
suing
under
the
Lanham
Act’s
provision
for
unregistered
marks,
the
argument
is
tougher
in
the
copyright
context
(where
the
federal
right
to
exclude
simply
wouldn’t
exist,
and
state
protection
would
be
preempted,
much
in
the
way
that
state
para‐patent
is
preempted,
Bonito
Boats)).
D.
It’s
also
important
to
appreciate
that,
to
the
degree
that
a
higher
originality
standard
opens
up
more
expressive
space
by
preventing
copyright
claims
10
for
pedestrian,
conventional
materials,
the
First
Amendment
interest
in
fos‐
tering
more
expression
is
served.
//
11