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17.14 Copyright Infringement—Originality

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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" part of a work need not be new or novel.] 


The test in this instruction was set forth in Urantia Foundation v. Maaherra, 114 F.3d 955, 958-59 (9th Cir. 1997) (holding that selection and arrangement of "greater being’s" revelations was not so mechanical as to lack originality). See also Feist Publ’ns, Inc. v. Rural Tel. Serv. 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 N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1034 (9th Cir. 1992) (holding that whether placement of geometric shapes was original was question for jury); see also Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir. 2004) (holding that whether musical composition was original was to be determined by trier of fact). 

For copyright purposes, the required level of creativity is "minimal," and "sweat of the brow" in creation is "wholly irrelevant." CDN, Inc. v. Kapes, 197 F.3d 1256, 1259-61 (9th Cir. 1999). The circuit has recognized originality or creativity in a variety of works, including in: a price list that reflected selection and weighing of price date, see id.; a musical composition with the same pitch and sequence as another work, but with a nonidentical meter, tempo or key, see Swirsky, 376 F.3d at 851; and a picture, based on its subject, posture, background, lighting, or perspective, see United States v. Hamilton, 583 F.2d 448, 452 (9th Cir. 1978); see also Rentmeester v. Nike, Inc., 883 F.3d 1111, 1121 (9th Cir. 2018) (noting that photographer’s "selection and arrangement of [creative] elements produced an image entitled to the broadest protection a photograph can receive"). 

When a work embodies only the minimum level 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. 2003). A thin copyright would only protect against "virtually identical copying." Id.; see also Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 915 (9th Cir. 2010) (noting "thin" copyright protection for "expression of an attractive young, female fashion doll with exaggerated proportions"); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994) (holding that "thin" copyright in graphical user interface protected against only "virtually identical copying"). 

In Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125-30 (9th Cir. 2018), the Ninth Circuit provided an extensive discussion of "originality" in the context of a case involving the alleged copyright infringement of a musical composition. Among other things, the Ninth Circuit explained: "To prove ‘unlawful appropriation,’ a higher showing of substantial similarity is needed. The works must share substantial similarities and those similarities must involve parts of the plaintiff’s work that are original and therefore protected by copyright." Skidmore, 905 F.3d at 1125 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).



Revised Jan. 2019