George Mason University Antonin Scalia Law School

Professor Justin Hughes on “Restating Copyright Law’s Originality Requirement”

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Ryan Reynolds

In the 89 years following the publishing of the first Restatement of Law in 1932, the American Law Institute’s (ALI) Restatements have become an important tool for those in the legal community to better understand different bodies of law. Despite the success of the Restatements, however, their expansion into different areas of law has not always been received with open arms. Such is the case with the Restatement of Copyright. Since the project was revealed in 2015, many have voiced their skepticism of the project, questioning both its utility and whether its supporters truly want to restate the law or instead reform it. It is against this backdrop that Professor Justin Hughes’ forthcoming article, Restating Copyright Law’s Originality Requirement, finds itself situated.

In his forthcoming article, Prof. Hughes provides a detailed review of the draft Restatement’s treatment of one of the threshold requirements for copyright protection: the “originality” requirement. This requirement is established per §102(a) of the Copyright Act of 1976, which states that “[c]opyright protection subsists . . . in original works of authorship [emphasis added].” To determine whether a work is sufficiently original to be copyrightable, however, the Supreme Court created a two-pronged test in its seminal 1991 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. opinion. First, the work must be “independently created by the author,” which means that the author created the work without knowingly copying another’s work; second, the work must possess a “modicum of creativity”—which, by all accounts, is a very low bar.

Prof. Hughes concludes that, despite the inspiration for the project “by academics who felt the pace of reform of copyright law . . . has been too slow, [and] in the wrong direction,” the draft Restatement “stick[s] to a centrist, sometimes minimalist, narrative of Feist’s two-step framework.” This notwithstanding, Prof. Hughes notes that there are several “occasional missteps” and “a few points of genuine concern” with the current draft Restatement.

The Draft Restatement’s Treatment of The “Originality Requirement”

As noted by Prof. Hughes, the draft Restatement follows the general framework of Feist with § 5 “‘Originality: In General,’” stating in 5(b) that, “‘[f]or a work to be original, the work must be independently created by its author, as discussed in § 6, and must embody expression that is at least minimally creative, as discussed in § 7.’”

In his review, Prof. Hughes examines § 6 and § 7 respectively, beginning first with § 7’s treatment of Feist’s modicum of creativity requirement.

§ 7’s Treatment of the Modicum of Creativity Requirement

Describing it as the “true heart of the draft Restatement’s originality exercise,” Prof. Hughes commends the draft Restatement for what it does well while also criticizing it on several grounds. As for what he believes it does well, Prof. Hughes approves of the language shift from 7(a)’s, which focuses on “expression that is…minimally creative,” to 7(b) and 7(c)’s, which focuses on the author’s “choices.” While acknowledging that others have criticized the section for “this sleight of hand,” Prof. Hughes believes that this properly reflects the “shift from what courts are supposed to do to what courts actually do [emphasis in original].” As explained by Prof. Hughes, while Feist directs courts to look for a modicum of creativity, the Supreme Court’s 1903 Bleistein v. Donaldson Lithographing Co. decision prohibits judges from making “aesthetic judgments” on what is and is not creative. To resolve this tension, Prof. Hughes explains that courts look to the creative choices in the creation of a work to determine minimal creativity. Therefore, Prof. Hughes believes the draft Restatement’s focus on author’s “choices” accurately reflects the practice of courts; however, as it barely mentions Bleistein, it does not adequately explain to the reader what it is doing.

Further, Prof. Hughes criticizes § 7 for not following its treatment of author’s “choices” consistently where 7(c) is concerned. The relevant language of 7(c) says that “‘[t]he minimal-creativity requirement is not satisfied by choices . . . (such as . . . the tools used to produce the work . . . ).’” Prof. Hughes argues that this provision is incorrect, as “[t]he artist’s choice of which tools to use is part of the creative process. The sculptor’s choice of which chisel to pick up—width of blade, angle of blade, hardness of steel, etc.––may be an expressive choice.”

Another problem Prof. Hughes identifies with the draft Restatement of § 7 is that “Section 7(b) clearly seems intended to limit ‘selection, coordination, and arrangement’ as possible bases for original expression to ‘compilation’ works.” While the current draft of 7(b) states that, “In the case of a compilation [emphasis in original], choices regarding the selection, coordination, or arrangement of elements can satisfy the minimal creativity requirement even if those elements are not themselves original,” the 2018 version “did not have this limitation and was more open-ended.” As expressed by Prof. Hughes, “This intent to limit selection, coordination, and arrangement of bases for minimal creativity to the category of ‘compilation’ works is not an accurate reflection of case law [emphasis in original].”

Prof. Hughes also criticizes the draft Restatement both for what it chooses to say and chooses not to say about creativity. As to the former, while comments to § 7 do not provide a definitive definition of what is or is not original, they do provide a list outlining what minimal creativity requires. While to Prof. Hughes this list is helpful, it is also imperfect and raises concerns. One concern he highlights is its potential to raise the minimal-creativity bar, thereby narrowing copyright’s protections. To this point, Prof. Hughes highlights that, in the draft Restatement’s list, it provides that creativity must be “‘making non-obvious choices from more than a few options.’” As Prof. Hughes breaks down, “[t]hat appellate court dictum is directly contradictory to the Supreme Court’s statement in Feist . . . that the minimal-creativity requirement . . . can be met by ‘some creative spark, ‘no matter how crude, humble, or obvious’’[emphasis in original].”

As to what the draft Restatement chooses not to say about creativity, Prof. Hughes first believes that, to improve, the draft Restatement should “includ[e] . . . a discussion of how choices that manifest individual personality,” such as the decisions of photographers on how they take pictures, are “protectable original expression.” To this point, Prof. Hughes believes that “the most serious shortcoming” of § 7 is the Reporters’ decision not to address Bleistein—which, in the cited words of Prof. Barton Beebe, “‘directly connected ‘originality’ with personal expression.’” Second, Prof. Hughes believes that § 7 should acknowledge “‘intellectual’ choices” as “part of the minimal-creativity equation.”

§ 6’s Treatment of The Independent Creation Requirement

Moving onto his review of § 6, Prof. Hughes first points to its language: “A work meets the independent-creation criterion for originality if the author has contributed some expression to the work without copying that expression from any preexisting work.” While Prof. Hughes believes that the “formulation is ok,” he quickly points out issues he sees with the section’s comments and Reporters’ Notes. First, Prof. Hughes notes that Comment a’s statement “that ‘[f]or expression to be independently created, it must come from the mind of the author’ . . . arguably conflates the two Feist prongs”—a conflation he notes Comment b also likely commits. As Prof. Hughes explains, “the independent production requirement is that the expression be made or brought into the world by a person who had not experienced the same expression previously [emphasis in original],” and therefore “[i]t is not necessary that it ‘come from the mind of the author.’” As Prof. Hughes illustrates, “If a person throws a set of dice one hundred times and writes down the resulting dice totals from each roll on a list, that list was ‘independently-created’ under Feist.”

Prof. Hughes is also critical of the discussion of “novelty” in Comment b, which says that “‘the expression need not be novel or unique.’” While he believes the Reporters’ Notes make an important point, he sees the use of the word “novelty” as simply “too loaded with patent law baggage.” As he explains, the independent-creation standard for Copyright is different from patent law’s “novelty” standard, as “[c]opyright’s independent-creation requirement does not mean that the thing cannot already exist in the world.” Therefore, as there may be confusion in using the word “novelty,” Prof. Hughes recommends removing it altogether.

Lastly, Prof. Hughes also questions the amount of attention the Comments and Reporters’ Notes to § 6 dedicate to nonhuman authorship. After providing an overview of the current limited case law surrounding this issue, he concludes that, while “[t]hese issues are fun conjecture for academics, . . . [they] are so rarefied as to wonder why the draft Restatement discusses them at all.”