17.14 Copyright Infringement—Originality

            You may find that [state name of work] [state specific components of the work] [is] [are] original if [it was] [they were] created:

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

Second, by use of at least some minimal creativity. 

[The “original” part of a work need not be new or novel.] 

Comment

“Original, as the term is used in copyright, means only that the work was independently created by the author . . . , and that it possesses at least some minimal degree of creativity.”Feist Pubs, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991).  A work is original if “the author contributed something more than a merely trivial variation, something recognizably his own.”  N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992) (citation omitted).  The effort involved to create the work is “wholly irrelevant.”  CDN, Inc. v. Kapes, 197 F.3d 1256, 1260 (9th Cir. 1999).  However, when a work embodies only the minimum level of creativity necessary for copyright, it is said to have “thin” copyright protection,which “protects against only virtually identical copying.” Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003).

            Whether a work involves sufficient creativity is a question of fact, see Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850, 851 (9th Cir. 1938) (holding that “question of originality” is “one of fact, not of law”); Paul Goldstein, Goldstein on Copyright,§ 2.2.1 (3d ed. 2023) (“Courts have historically characterized originality as a question of fact.”).

            Because “[o]riginality in this context means little more than a prohibition of actual copying,” N. Coast Indus., 972 F.2d at 1033 (citation omitted),“a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying,” Feist, 499 U.S. at 345. The defendant can establish that the plaintiff copied the work (as opposed to independently creating it) in the same manner that the plaintiff proves infringement.  See N. Coast Indus., 972 F.2d at 1034.  See Instruction 17.5 (Copyright Infringement—Elements—Ownership and Copying).

            Facts are not original and, therefore, are non-copyrightable.  See Feist, 499 U.S. at 344 (“[T]here can be no valid copyright in facts.”).  But a compilation of facts may be entitled to copyright protection if the author’s arrangement or selection of those facts is original.  See id. at 348-49; CDN, 197 F.3d at 1259; see also Instructions 17.10 (Copyright Interests—Authors of Collective Works), 17.16 (Compilation).

Revised Dec. 2023