Toward a Stricter Originality Standard for Copyright Law

Abstract

In order to be copyrighted, a work of art must be 'original." Critics have persuasively argued that copyright law, at various phases in its evolution, has defined originality by applying a Romantic conception of authorship, according to which the author creates out of a wholly personal, original self. But, in contrast to the idealized, Romantic work, an actual work need only exhibit an "extremely low" level of originality in order to merit copyright protection. This Note attempts to resolve this apparent tension between theory and practice, arguing that the Romantic conception of authorship underlies the law's low originality standard. Further, the Note argues that the modern understanding of authorship, which recognize's that the outside world shapes the author's consciousness, furnishes a more appropriate model for originality jurisprudence. Accordingly, the Note concludes, a stricter originality standard is needed, which would serve to reinvigorate the public domain while protecting truly original works.