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The Sine Qua Non Of Copyright Is Uniqueness, Not Originality, Samson Vermont

Samson Vermont

The Supreme Court tells us originality is the sine qua non of copyright. I argue uniqueness is. Copyright only protects unique work – work no one created before (novel) and no one could independently create after (unrepeatable).

The Court also tells us originality has two components: independent creation by the author and creativity. But they are mere heuristics for uniqueness. Independent creation is over-inclusive; creativity is both over- and under-inclusive. They do not offset each other, so gaps remain. Courts plug most of the gaps with limiting doctrines and the substantial similarity standard. To put it imprecisely: (independent creation) + …