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In the United States, what is the threshold for "originality" in order to have copyright protection?

17 U.S.C. § 102 says that copyright protection subsists "in original works of authorship...". How original does the work need to be?

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Originality requires independent creation plus a modicum of creativity

This was answered in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991):

originality requires independent creation plus a modicum of creativity.

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. [Citations removed]

This connection to creativity is explained more in the United States Copyright Office's Compendium at 308.2, citing entirely from Feist.

The US Copyright Office presents eleven categories of things that "do not satisfy the creativity requirement"1 (308.2; 313.4(A)-(K)):

  1. mere copies
  2. de minimis authorship: "copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity" (citing Feist, p. 363); e.g. substitution of pronouns, correction of spelling, three-note sequences, are not sufficiently creative
  3. words and short phrases
  4. works consisting entirely of information that is common property; e.g. calendars, schedules of sporting events
  5. measuring and computing devices (with the exception of separable creative features distinct from what makes the article useful)
  6. listings of ingredients or contents
  7. blank forms
  8. characters
  9. scènes à faire
  10. familiar symbols and designs
  11. mere variations of coloring

Canada has taken a different approach

For a comparative look, Canada has rejected creativity as the hallmark of originality. In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Supreme Court considered the standard from Feist but took a different approach:

an “original” work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, creativity is not required to make a work “original”.

Application

Many answers on this site apply this standard. E.g.

You can also browse published decisions applying this standard (a Google search of casetext.com).


1. Although, I recognize for several of these categories there are additional or alternative rationales, and even statutory bars (e.g. 102(b)), for not granting copyright protection.

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    "For sale, baby shoes, never worn" - about the absolute bare minimum of originality.
    – Trish
    Dec 27, 2022 at 18:20
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    Note also 17 USC 102(b), which provides that: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery," This applies, for example, to the instructions in most recopies as well as the list of ingredients. Dec 27, 2022 at 19:55
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    @Trish - it is a very compact short story but far above a modicum of originality. A page full of doodling would be protected by copyright in the US. Dec 28, 2022 at 6:30
  • 13 identical notes at the beginning of saint sains’ “Danse macabre”. (Bloody spelling checker).
    – gnasher729
    Apr 2, 2023 at 18:35

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