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Originality in Copyright

Originality is an important legal concept with respect to copyright.  Originality is the aspect of a created or invented work that makes it new or novel, and thereby distinguishes it from reproductions, clones, forgeries, or derivative works.  In this regard, an original work stands out because it was not copied from the work of others.

There is no objective minimum amount of content required for a work to be included within the scope of copyright.  The Copyright Act defines only two requirements for copyrightability: original authorship (“originality”) and fixation.  “Original” means a work created through the “fruits of intellectual labor.”  “Originality” therefore requires not only that the author has not copied the work from another, but also that there is “at least some minimal degree of creativity.”

“Originality” is a constitutional requirement for copyright applicability even though it was first stated explicitly by statute only with the introduction of the 1976 Copyright Act.  In the case of Feist Publications, Inc. v. Rural Telephone Service, the U.S. Supreme Court explained that the requirement of originality is not particularly stringent and is comprised of two elements: that the work be independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity.  A work satisfies the “independent creation” element so long as it was not literally copied from another, even if it is fortuitously identical to an existing work.  The “creativity” element sets an extremely low bar that is cleared quite easily.  It requires only that a work possess some creative spark, no matter how crude, humble, or obvious it might be.

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