Abrams, H. "Originality and Creativity in Copyright Law" Law and Contemporary Problems © 1992 Duke University School of Law
Abrams observe the change in the ways courts interpreted and used “originality” as a qualifying standard to test copyrightability of artworks, since Copyright Act of 1976 and the added clause of “original works of authorship.” Centering on the landmark decision of Feist v. Rural, he studies the development of originality standard before Feist, the implications of Feist opinion in defining “originality” once again, then looks at cases emerged after Feist to study the implications and applications of the decision.
In order for the standard to be applied, “originality” needs to be defined first. Abrams uses Justice Holmes’ opinion in Bleinstein v. Donaldson, to define originality as a “contribution of the author” rather than the “purpose” with which the work was created. Following the decision, standard of originality became about the “sweat of the brow,” about artist’s effort put in, with disregard to artistic or aesthetic merit.
Abrams marks Feist as the landmark decision that shifts meaning of originality from being about physical contribution to having “intellectual production, of thought, and conception.” The most important declaration of the decision is when court constitutionally mandates component of creativity as part of the requirement, which now is embedded in the Constitution. However, at the same time, Abrams recognize the challenge is to define what satisfies the minimum creativity required for copyright protection. He responds that minimum creativity is anything more than “placing an obvious grouping of data in a common and obvious format,” and more refined standards to be established by the future court.
Abrahams introduces series of cases after Feist decision, most notably Kregos v. Assoicated Press and BellSouth Advertising v. Donnelly Information Publishing, to illustrate that originality is no longer found in efforts measured by “time, expense, nor even in the vulnerability of competition,” but only in the final work that it is a work of some independent, original intent.
Abrams concludes on a positive note. The decision has, once and for, declared the importance in the expression of idea, more than the “sweat of the brow” in copyright law. He believes that Feist has made sure the abusive copyright claims on recompilations of facts and data, made so easily in light of emerging technology of today, by declaring a “meaningful minimum” in constitutional standard of original input.
While the paper does not directly argue about court’s aesthetic decisions on defining and shaping the meaning of originality, Abrams illustrates through Feist and one specific limit it has set on what is NOT copyrightable has helped provide precedence and clear standard for judges to follow. This goes on to support that, even with just one example that illustrate the line of bare minimum originality, the evaluation has become more consistent. Therefore, a definitive structure for evaluation of copyrightability will provide consistent jurisdiction that both the courts and public can follow.
BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
The case rises about when the Library sues Corel Corp, a company which makes photographic copies of famous artworks from museums, works which are already in public domain, sued Corel Corps for using digital images of these arts in their CD-Rom without compensation and sued the corporation for copyright infringement. The court was now faced with reinterpreting the loosely written “originality requirement” set during Burrow-Giles Lithographic Co v. Sarony in l884 and reshape the copyright clause of the constitution. Bridgeman points out in its argument the special techniques and extra effort and time which has put into reproducing the artworks as precisely and accurately as it can, but it further points to the fact while the copying of the artworks require a great deal of admirable skills, they are not of original merit and does not have artistic values that give them the right to copyright protection. Judge Kaplan puts it, “sweat of the brow” vs. “creative spark.” While the techniques and skills are valuable assets, they are not characteristics of creative of which, the case defines as “elements of originality… may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression…” These “elements” described in the case are not to be developed through training and effort, the way techniques require to make a perfect copy of a painting would, but requires a natural talent to capture creative moment on the two dimensional space. Because the works under question adamantly lack “distinguishable variation” and original input from the actual work that is being reproduced, no copyright protection can be granted.
Ultimately, Bridgeman v. Corel Corp ruled that two dimensional photographic reproductions of art already in the public domain were not copyrightable because the reproduction process of the art involved zero originality, which does not merit them the copyright production enjoyed by original works of photography.
This case provides a great support to the case because the case directly recognizes the lack of structure of the Sarony case and faces the difficulty of its broad definition by placing more aesthetic requirements for copyright protection. The case pinpoints to the public that originality that come from art is a matter of talent, not in the skills and efforts put into it. But the word talent is a very subjective and elusive term, as its meaning changes with societal perception and preferences. To base a legal clause on an intangible term fails to create a concrete standard for the society. Also, words used such as “distinguishable variation” and “creative spark” to describe works of original art create clear boundaries that we come to expect from the law. Observing from previous cases, it is apparent that no clear precedent was formed from one case to another, but the court created new aesthetic definitions of “original work of art” through case-by-case studies. Aesthetic decisions have created inconsistency and lack of predictability in copyright law.
Berne Convention for the Protection of Literary and Artistic Work, first established in Berne Switzerland, 1886, is an international agreement between parties of the convention about copyright that provides an equalized system where artworks will be evaluated and given same protection term abroad or at home. The United States adopts the convention in 1989, with adoption of “Berne Convention Implementation Act of 1988." Article 2 of the convention focuses on setting lines to define “protected works.” Section 1 of the article defines types of works, both literary and artistic that can be protected under copyright. In regard to two dimensional art, the convention states, “cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches” are types of art to be protected under copyright. With just the adoption of section 1, just about everything created in shape of the above can be protected. Sections 2 and 4 gives ultimate power to the legislatives of each country to determine types of work to be protected and the translation of the guideline set in the convention. Section 3 goes on to say appropriated works will be “protected as original works without prejudice to the copyright in the original work,” and section 5, along the similar line, goes to declare that collection of intellectual or artistic works can be protected under copyright since its arrangement and selection requires artistic and intellectual genius. Section 7 further points to the power of each state to design and model their own copyright law in regards to applied and industrial art. In section 8, it declares news and press release are reported facts and do not qualify for copyright protection.
The convention is very important to the topic because it demonstrates a way of setting legislative standard to subjects of copyright with minimal use of aesthetic qualifications. Even thought it attempted to equalize the law in international scale, it was written broadly to allow interpretations by the each state—to set their own standards and qualifications in regard to protected works. While United States court relied on judging protection of two-dimensional artwork based on evaluating the work on aesthetic qualities, the Berne convention defines types of protected work without using words such as “original” and “minimum creativity.” By laying out technical and physical basis to judging protected work, it creates little confusion to society in defining what art is. But at the same time, the danger of such technical term is that its scope allow to many works to be protected, therefore possibly devaluing the worth of “art” in the society. Berne points out to the fact that perhaps aesthetic decisions are necessary to promote progress of art.
Bleinstein v. Donaldson Lithographic Company- 188 U.S. 239; 23 S. Ct. 298; 47 L. Ed. 460; 1903 U.S. LEXIS 1278
Bleinstein v. Donaldson faces the challenge and limitation faced and unanswered by broad definition of authorship in Burrow v. Sarony: What is the minimum originality and creativity required for a work to have copyright protection? The case centers on chromolithographic copies made of engravings of females in ballet costumes, bicycle tricks, and statuary originally used and designed for a circus poster. The circus company who circulated the design for their advertisement filed a copyright infringement suit against the lithographing company for making and distributing copies of their design, and asked for monetary compensation. The defense argued, and won in the circuit court decision, that under the statute, only “pictorial illustrations” and “work’s connected with fine arts” were to be granted copyright protections. The figures portrayed were not photographs and only pictorial replicas of the people that lack originality artworks and they were also immoral ones, as the females were drawn distastefully and crude to trigger excitement for potential customers, and therefore they only contained commercial value for the sole purpose of advertisement and minimal artistic value. Therefore, no copyright protection should be granted. However, Justice Holmes, in this crucial Supreme Court decision, demonstrates his concern over judges’ ability to evaluate art on its aesthetic merit and states that any work of real value, monetary or artistic, should be subjected to copyright—the fact in which this particular work was pirated adds value to the original work—and the court grants the plaintiff the exclusive copyright protection of the design.
Bleinstein v. Donaldson adds great support to my thesis. Unlike Burrow v. Sarony where the court jumped into defining authorship through judging art in its aesthetic qualities and original intention of the art, which is difficult to define or prove, the court admits to the difficulty as the judiciary to be evaluators of fine art. Instead, the court declares that any work of art that shows some value to the society—either in monetary sense, as in the circus advertisement, or in artistic contributions, as in works by Dahli—should be granted copyright protection. Through this decision, the artwork was no longer judged under constraints of morality or people’s perception of “high art.” Though this decision still left many questions, such as where do you draw the line for minimal originality/value to which court will grant copyright, the case is an example that court’s restraint in making aesthetic decisions helped broaden what society perceived as “art” and promoted creativity and progress through making high art more accessible for people.
Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757
This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.
ETS-HOKIN v. SKYY, a decision centering on photographs of Skyy vodka used for advertisement, raises key factors in judging copyrightability of the work. First, is the photograph an original, or a derivative artwork? Secondly, which originality requirement should be applied? The difference in the answer to part one cost a photograph a copyright protection.
The case was brought to motion when Ets-Hopkin, who was hired by Skyy to photograph the vodka bottle for their advertisement campaigned, sued the company for copyright infringement when the Skyy Inc. used his image in various advertisements under limited license without his consent. Also, he argued that other photographers who photographed the vodka for the campaign had copied his photos, virtually producing identical images. The company argued in defense that the plaintiff’s photograph is not subject to copyright protection, since the work is a derivative work of Skyy’s signature vodka bottle itself. The district court has concluded that the photography was in fact a derivative work, since Skyy vodka bottle, from the color, font, to the label, is a “pre-existing work.” Since the photograph was a derivative work, the “substantial originality” clause was used to evaluate copyrightability of the photo. The court ruled that photos were “insufficiently original” and denied photos’ copyright protection.
However, the Court of Appeals concluded differently. The court declared Ets-Hopkin’s photos original work of art. The argument to consider vodka bottle as a work of art, was not subject to copyright because the bottle was driven mainly by function, and could not be protected by copyright law as a result. The court recognized that the label might have been protected by copyright, but it was ruled to be incidental part of the photograph, not a substantial part. Since the first work of art, especially photography, only require “minimal amount of originality” by the Copyright Act, the court stated that the photography demonstrated sufficient creativity and granted the photograph copyright protection, but the issue of infringement was not settled in the case.
This case is a fascinating study of how one subjective of thought, in this case in what the court believes to a derivative work, can influence so far as being the key determining factor in granting copyright protection for a work. Especially by the weight of value that comes from copyright monopoly, there is a need for a more rigid standard to match the gravity of power granted by copyright law.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.
The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.
This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.
William Patry presents the recent opinion from District of Utah, Meshwerks, Inc v. Toyota Motor Sales U.S.A. Inc—a case in which Meshwerks, hired to make computerized and animated 3D models Toyota cars for an ad campaign, sued the company for copyright infringement when the models were used without his consent. Meshwerks describes his models as a work of “the graphic sculptor” using new graphic technology. The process is not just mechanical, but creative as well; it requires the designer to sketch, from scratch, the 2D picture of a 3D object using the computer as a tool, like a brush for a painter. Therefore, he argues that no two models will ever be alike, for ultimately every design is a unique creation. In defense, Toyota argued that digital models are not entitled to copyright protection, because the purpose of the graphic tool is to create an exact replica and inherently lacks originality. The court declared “lack of a creative recasting of the Toyota vehicles” through its digital medium and therefore Mershwerk’s models are not protected under copyright law.
Patry, however, argues that the Court has failed to evaluate the case on the heart of matter, the issue of originality, but instead focused forming its opinion on technical process in which the models were produced. Patry argues that since Bleinstein v. Donaldson, “purpose is irrelevant,” or the intent in which the work is created: the only question in matter is whether original contribution exists or not in its final outcome. Patry argues that the fact that both the court and the defendant recognized that skill, technical know-how, and the creative process that is born from this technology in the creation of models should have been sufficient to grant Meshwerk’s models copyright protection; a creative input, also called original input, is required in creating the model. Patry uses past decisions on copyright protections of photography, particularly of SHL Imaging, Inc. v. Artisan House, Inc. to mirror the inconsistency of this decision with which Supreme Court has stated: “To be sure, the requisite level of creativity is extremely low, even a slight amount will suffice.” The determination of copyright protection with photography has been made completely on original input, judged by its aesthetic quality. Camera is also a medium that creates exact replicas of life in 2D, but the court has focused on “artistic choices” made by the photographer. Patry pinpoints that in this particular decision, the court focuses on the purpose of creating the models and since the digital technology attempts to create a real-life picture of the car, it lacks the “creative recasting,” ignoring the creative input required to create the model in the process.
This entry forthright demonstrates the inconsistency that the loosely written and interpreted copyright law in the court. It allows room to argue that perhaps aesthetic qualities are too abstract to be good basis for determining copyright qualification.
Goldstein argues and defines copyright in respect to one issue only: authorship. Authorship implies about the author and the audience, and copyright serves as a “vehicle” for authors to reach out to its audience and for the audience to reward author for his effort. He pushes that the purpose of copyright thought and interpreted in this view provides grounds to reforming copyright. Three points are raised.
First is that “copyright law must protect authors from other influence other than their audience.” Many argue that the copyright is neither about authors nor authorship, but about the commerce and the publisher’s role involved, for they determine what is made available to the public. However, Goldstein argues that ultimately publisher’s power(and the transaction costs involved) goes so far in their choices, and it’s the consumers who make the decision of what to buy; therefore, the market is consumer-driven. He also addresses the dilemma of copyright: too much monopoly will produce no work, but too little of monopoly will wither the information, but concludes that after ultimately looking at both extremes, the ending result in the artworks flourished has been the same. As long as copyright law provides a market that is consumer-driven and transaction costs do not overwhelm authors’ market.
Secondly, he argues that copyright law “must not judge authors’ efforts by too exacting a standard.” Goldstein favors the way US Copyright courts have shifted the direction of copyright law not on protecting just utilitarian products, but more so on works of “creative authorship.” He favors court’s strict compass of infringement protection of utilitarian products, but while having wide and generous scope in judging artistic works. However, he recognizes the need to have a way of granting different degree of copyright protection for different works and criticizes that utilitarian product should not enjoy same copyright protection as those of “creative authorship.” Goldstein argues that since Fiest creativity has been built into the requirement of copyright law, sui generis law, is a living thing.
Lastly, he argues that “it must not impose too severe a prohibition against author’s borrowing from others.” Goldstein sees Berne’s Convention as the ideal model of promoting authorship and works to remove barriers between the author and the audience. As a Berne member, the goal of US and the members is to promote this line of copyright law across the globe. While recognizing the under developed countries’ immediate economic dependency on piracy, it should help other countries in adopting Berne’s Convention of Copyright.
The paper underlies the assumption that the main issue of copyright is authorship, which is the area where most of the aesthetic determination of the courts is made. He presents the other point of view, which he favors the room in copyright law to make aesthetic and artistic determinations with the change of time. However, he also sees that in some areas, more structure is needed, especially in having different copyright protection terms for different types of art.
Gorman presents series of copyright cases and points to the discrepancy in the decisions in evaluating copyrightability. He argues such discrepancy is caused by the Court’s aesthetic determination or “value judgments” which often is “badly done and unsupportable.” He observes the history and pattern of copyright courts’ decisions regarding three areas of copyright law: determination of authorship, Visual Artists’ Rights Act of 1990, and fair use. With judgments on authorship, with original contribution at the heart of the issue, Gorman recognizes courts need to rely on practicing judicial restraint. Ever since Feist v. Rural, inconsistent standards of creative input, applied and interpreted differently by the each court, have created confusion and unpredictability in the courts. Three different standards are “minimal creativity,” “substantial creativity,” and “gross creativity." These applications vary with the nature of the court and also whether the nature of the work is original or a derivative of, such standards create no consistency in the way copyright decisions are written. Gorman argues since the statue, the Constitution and the Copyright Act, does not place a clause of “originality” and the confusion is created by courts’ “abuse” in making aesthetic standards, which creates more difficulty in judicial decisionmaking. With issues regarding VASA and fair use, he recognizes the necessity of aesthetic determination, in part, for the statute requires such determinations. With VASA, the law requires making determination in quality of the artists, for the heart of matter is to outlaw “distortion, mutilation, or modifications” of the work. Gorman argues lastly with in regards to fair use that the focus of the courts has been whether the artist has made a “transformative” use of the copyrighted work, and because the decisions in the past have been heavily reflecting the artistic values and tastes of the judges, such aesthetic determinations have been inconsistent and futile but it becomes necessary inherently due because Copyright Act requires such determinations. Gorman concludes at the end that aesthetic judgments are sometimes an abuse and sometimes a necessity, but so far in that the aesthetic determination is built into the statute given its ambiguities.
In prescription to the problem, he proposes different level of copyright protection depending on the creative input displayed by the work. Also in determining artistic status of works, courts should rely not on their aesthetic decisions, but opinions of professionals. Lastly in determination “transformative” change in the copyrighted work, the new work should be “altered in substance” as to stand on its own to show “independent creativity.”
The article relates directly to my topic and showcases how through time the aesthetic determinations, whether necessary or not, have failed to create a consistent set of copyright standards. This will provide great support my thesis in illustrating how something as rigid as the law, should not be based heavily on thoughts subjective and variable as aesthetic determinations.