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17.12 Copyright Infringement—Originality

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17.12 COPYRIGHT INFRINGEMENT—ORIGINALITY

An original work may include or incorporate elements taken from [prior works] [works from the public domain] [works owned by others, with the owner’s permission]. The original part[s] of the plaintiff’s work [is] [are] the part[s] created:

1. independently by the [work’s] author, that is, the author did not copy it from another work; and

2. by use of at least some minimal creativity.

[In copyright law, the "original element" of a work need not be new or novel.]

Comment

The test in this instruction was set forth in Urantia Foundation v. Maaherra, 114 F.3d 955, 958–59 (9th Cir.1997) (selection and arrangement of "greater being’s" revelations was not so mechanical as to lack originality). See also Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) ("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."). Originality is often a fact question for the jury. See North Coast Industries v. Jason Maxwell, Inc., 972 F.2d 1031, 1034 (9th Cir.1992) (whether copyright owner’s expression of idea inspired by designer was copyrightable was question for the jury where it was not clear the expression was substantially similar and that differences were merely trivial); see also Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir.2004) (whether musical composition was original was to be determined by trier of fact).

For copyright purposes, the required level of originality is "minimal" but "sweat of the brow" used to create it is "wholly irrelevant." CDN, Inc. v. Kapes, 197 F.3d 1256, 1259–61 (9th Cir.1999). The circuit has recognized "originality" in a variety of works, including: selection and weighing of price data to develop a price list (see id.); in musical composition, a work with the same pitch and sequence as another work, but not identical in meter, tempo or key (see Swirsky, 376 F.3d at 851); and subject, posture, background, lighting and perspective in a picture (see United States v. Hamilton, 583 F.2d 448, 452 (9th Cir.1978)).

Where a work embodies the minimum of creativity necessary for copyright, it is said to have "thin" copyright protection. See, e.g., Satava v. Lowry, 323 F.3d 805, 810–12 (9th Cir.), cert. denied, 540 U.S. 983 (2003). A thin copyright would only protect against "virtually identical copying."). Id. See also Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994) ("thin" copyright to graphical user interface protected against only "virtually identical copying").