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The "originality requirement" in copyright law

Posted by Steve Vondran | Dec 17, 2022

Attorney Steve® Copyright Law Essentials - Originality requirement

copyright law books


Originality is an important concept in copyright law. It is used to determine whether a particular work is eligible for copyright protection. In order for a work to be eligible for copyright protection, it must be original and must contain a certain level of creativity. The concept of originality is based on the idea that copyright law incentivizes creativity and encourages the creation of new works. For a work to be considered original, it must possess a minimal degree of creativity. This means that the work must possess some level of intellectual or artistic value that is unique to it. It cannot simply be a copy of an existing work. The originality requirement is an important part of copyright law as it ensures that creators are rewarded for their creative efforts. Without this requirement, anyone could simply copy existing works and pass them off as their own. This would be unfair to the original creator, who put in the effort to create something new. The originality requirement also serves to protect the public. Without it, others could copy existing works and claim them as their own. This could lead to confusion and could even lead to the infringement of another creator's rights. Originality is an important part of copyright law, and it is essential for protecting creators and the public. Without it, the incentive to create new works would be greatly reduced, and the public would be at risk of confusion and potential infringement.

Federal Case on Point


Oscar Tubio v. Adidas America, Inc., et al., CV 22-6424-GW-PVCx

In 1991, the Supreme Court decided Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), having reviewed an appeal from a district court's underlying ruling granting summary judgment in favor of the plaintiff in the action. See id. at 344. In the course of explaining its ruling in the case (which dealt, specifically, with “the extent of copyright protection available to telephone directory white pages,” id. at 342), the Supreme Court wrote as follows: The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. 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. 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. Id. at 345 (internal citations omitted); see also Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir. 2004) (“All that is needed to satisfy originality is for the author to contribute something more than a merely trivial variation.”) (internal quotation marks omitted); N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992) (“[O]riginality is the indispensable prerequisite for copyrightability.”). Notwithstanding having just quoted this passage at-length, it bears repeating that all Plaintiff has to ultimately demonstrate on this issue is “some minimal degree of creativity,” “some creative spark,” an “extremely low” level requiring only a “slight amount.”

Federal cases that have discussed the originality requirement

Here is a short list of federal legal cases that rules on the "originality" requirement in copyright law:

1. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)

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

3. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

4. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994)

5. Effie-A-Photographer v. J. Walter Thompson Co., 7 F.3d 1225 (7th Cir. 1993)

6. Warner Bros. Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231 (2d Cir. 1983)

7. Bridgeman Art Library Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

8. Kienitz v. Sconnie Nation, LLC, 766 F.3d 756 (7th Cir. 2014)

9. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000)

Contact a Federal Litigation Firm for Copyright Disputes

Since 2004, we have handled several hundred copyright infringement litigations.  We are perhaps the leading Copyright infringement defense law firm in the United States.  Call us at (877) 276-5084 or leave us a email through our contact form.

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Steve Vondran

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