{"id":8491,"date":"2021-05-20T17:04:36","date_gmt":"2021-05-20T17:04:36","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=8491"},"modified":"2026-02-03T20:11:39","modified_gmt":"2026-02-03T20:11:39","slug":"professor-justin-hughes-on-restating-copyright-laws-originality-requirement","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2021\/05\/20\/professor-justin-hughes-on-restating-copyright-laws-originality-requirement\/","title":{"rendered":"[Archived Post] Professor Justin Hughes on \u201cRestating Copyright Law\u2019s Originality Requirement\u201d"},"content":{"rendered":"

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.<\/em><\/strong><\/p>\n

\"theBy Ryan Reynolds<\/strong><\/p>\n

In the 89 years following the publishing of the first Restatement of Law in 1932, the American Law Institute\u2019s (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<\/a>. Since the project was revealed in 2015, many have voiced their skepticism<\/a> 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\u2019 forthcoming article, Restating Copyright Law\u2019s Originality Requirement<\/em><\/a>, finds itself situated.<\/p>\n

In his forthcoming article, Prof. Hughes provides a detailed review of the draft Restatement\u2019s treatment of one of the threshold requirements for copyright protection: the \u201coriginality\u201d requirement. This requirement is established per \u00a7102(a) of the Copyright Act of 1976<\/a>, which states that \u201c[c]opyright protection subsists . . . in original <\/em>works of authorship [emphasis added].\u201d 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<\/em><\/a>. <\/em>opinion. First, the work must be \u201cindependently created by the author,\u201d which means that the author created the work without knowingly copying another\u2019s work; second, the work must possess a \u201cmodicum of creativity\u201d\u2014which, by all accounts, is a very low bar.<\/p>\n

Prof. Hughes concludes that, despite the inspiration for the project \u201cby academics who felt the pace of reform of copyright law . . . has been too slow, [and] in the wrong direction,\u201d the draft Restatement \u201cstick[s] to a centrist, sometimes minimalist, narrative of Feist<\/em>\u2019s two-step framework.\u201d This notwithstanding, Prof. Hughes notes that there are several \u201coccasional missteps\u201d and \u201ca few points of genuine concern\u201d with the current draft Restatement.<\/p>\n

The Draft Restatement\u2019s Treatment of The \u201cOriginality Requirement\u201d<\/strong><\/p>\n

As noted by Prof. Hughes, the draft Restatement follows the general framework of Feist<\/em> with \u00a7 5 \u201c\u2018Originality: In General,\u2019\u201d stating in 5(b) that, \u201c\u2018[f]or a work to be original, the work must be independently created by its author, as discussed in \u00a7 6, and must embody expression that is at least minimally creative, as discussed in \u00a7 7.\u2019\u201d<\/p>\n

In his review, Prof. Hughes examines \u00a7 6 and \u00a7 7 respectively, beginning first with \u00a7 7\u2019s treatment of Feist<\/em>\u2019s modicum of creativity requirement.<\/p>\n

\u00a7 7\u2019s Treatment of the Modicum of Creativity Requirement<\/em><\/p>\n

Describing it as the \u201ctrue heart of the draft Restatement\u2019s originality exercise,\u201d 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)\u2019s, which focuses on \u201cexpression that is\u2026minimally creative,\u201d to 7(b) and 7(c)\u2019s, which focuses on the author\u2019s \u201cchoices.\u201d While acknowledging that others have criticized the section for \u201cthis sleight of hand,\u201d Prof. Hughes believes that this properly reflects the \u201cshift from what courts are supposed to do<\/em> to what courts actually do<\/em> [emphasis in original].\u201d As explained by Prof. Hughes, while Feist<\/em> directs courts to look for a modicum of creativity, the Supreme Court\u2019s 1903 Bleistein v. Donaldson Lithographing Co. <\/em>decision prohibits judges from making \u201caesthetic judgments\u201d 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\u2019s focus on author\u2019s \u201cchoices\u201d accurately reflects the practice of courts; however, as it barely mentions Bleistein<\/em>, it does not adequately explain to the reader what it is doing.<\/p>\n

Further, Prof. Hughes criticizes \u00a7 7 for not following its treatment of author\u2019s \u201cchoices\u201d consistently where 7(c) is concerned. The relevant language of 7(c) says that \u201c\u2018[t]he minimal-creativity requirement is not satisfied by choices . . . (such as . . . the tools used to produce the work . . . ).\u2019\u201d Prof. Hughes argues that this provision is incorrect, as \u201c[t]he artist\u2019s choice of which tools to use is part of the creative process. The sculptor\u2019s choice of which chisel to pick up\u2014width of blade, angle of blade, hardness of steel, etc.\u2013\u2013may be an expressive choice.\u201d<\/p>\n

Another problem Prof. Hughes identifies with the draft Restatement of \u00a7 7 is that \u201cSection 7(b) clearly seems intended to limit \u2018selection, coordination, and arrangement\u2019 as possible bases for original expression to \u2018compilation\u2019 works.\u201d While the current draft of 7(b) states that, \u201cIn the case of<\/em> a compilation<\/em> [emphasis in original], <\/em>choices regarding the selection, coordination, or arrangement of elements can satisfy the minimal creativity requirement even if those elements are not themselves original,\u201d the 2018 version \u201cdid not have this limitation and was more open-ended.\u201d As expressed by Prof. Hughes, \u201cThis intent to limit selection, coordination, and arrangement of bases for minimal creativity to the category of \u2018compilation\u2019 works is not <\/em>an accurate reflection of case law [emphasis in original].\u201d<\/p>\n

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 \u00a7 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\u2019s protections. To this point, Prof. Hughes highlights that, in the draft Restatement\u2019s list, it provides that creativity must be \u201c\u2018making non-obvious choices from more than a few options.\u2019\u201d As Prof. Hughes breaks down, \u201c[t]hat appellate court dictum is directly <\/em>contradictory to the Supreme Court\u2019s statement in Feist<\/em> . . . that the minimal-creativity requirement . . . can be met by \u2018some creative spark, \u2018no matter how crude, humble, or obvious\u2019\u2019[emphasis in original].\u201d<\/p>\n

As to what the draft Restatement chooses not to say about creativity, Prof. Hughes first believes that, to improve, the draft Restatement should \u201cinclud[e] . . . a discussion of how choices that manifest individual personality,\u201d such as the decisions of photographers on how they take pictures, are \u201cprotectable original expression.\u201d To this point, Prof. Hughes believes that \u201cthe most serious shortcoming\u201d of \u00a7 7 is the Reporters\u2019 decision not to address Bleistein<\/em>\u2014which, in the cited words of Prof. Barton Beebe, \u201c\u2018directly connected \u2018originality\u2019 with personal expression.\u2019\u201d Second, Prof. Hughes believes that \u00a7 7 should acknowledge \u201c\u2018intellectual\u2019 choices\u201d as \u201cpart of the minimal-creativity equation.\u201d<\/p>\n

\u00a7 6\u2019s Treatment of The Independent Creation Requirement<\/em><\/p>\n

Moving onto his review of \u00a7 6, Prof. Hughes first points to its language: \u201cA 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.\u201d While Prof. Hughes believes that the \u201cformulation is ok,\u201d he quickly points out issues he sees with the section\u2019s comments and Reporters\u2019 Notes. First, Prof. Hughes notes that Comment a\u2019s <\/em>statement \u201cthat \u2018[f]or expression to be independently created, it must come from the mind of the author\u2019 . . . arguably conflates the two Feist<\/em> prongs\u201d\u2014a conflation he notes Comment b <\/em>also likely commits. As Prof. Hughes explains, \u201cthe independent production <\/em>requirement is that the expression be made or brought into the world by a person who had not experienced the same expression previously<\/em> [emphasis in original],\u201d and therefore \u201c[i]t is not necessary that it \u2018come from the mind of the author.\u2019\u201d As Prof. Hughes illustrates, \u201cIf 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 \u2018independently-created\u2019 under Feist<\/em>.\u201d<\/p>\n

Prof. Hughes is also critical of the discussion of \u201cnovelty\u201d in Comment b<\/em>, which says that \u201c\u2018the expression need not be novel or unique.\u2019\u201d While he believes the Reporters\u2019 Notes make an important point, he sees the use of the word \u201cnovelty\u201d as simply \u201ctoo loaded with patent law baggage.\u201d As he explains, the independent-creation standard for Copyright is different from patent law\u2019s \u201cnovelty\u201d standard, as \u201c[c]opyright\u2019s independent-creation requirement does not mean that the thing cannot already exist in the world.\u201d Therefore, as there may be confusion in using the word \u201cnovelty,\u201d Prof. Hughes recommends removing it altogether.<\/p>\n

Lastly, Prof. Hughes also questions the amount of attention the Comments and Reporters\u2019 Notes to \u00a7 6 dedicate to nonhuman authorship. After providing an overview of the current limited case law surrounding this issue, he concludes that, while \u201c[t]hese issues are fun conjecture for academics, . . . [they] are so rarefied as to wonder why the draft Restatement discusses them at all.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP. By Ryan Reynolds In the 89 years following the publishing of the first Restatement of Law in 1932, the American Law Institute\u2019s (ALI) Restatements have become an important tool for those in the legal community to better understand […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,12],"tags":[111,125,186,337,373,827,1227,1265,1417],"class_list":["post-8491","post","type-post","status-publish","format-standard","hentry","category-copyright","category-copyright-theory","tag-ali","tag-american-law-institute","tag-barton-beebe","tag-copyright-2","tag-creativity","tag-justin-hughes","tag-restatement-of-copyright","tag-ryan-reynolds","tag-supreme-court"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/8491","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=8491"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/8491\/revisions"}],"predecessor-version":[{"id":15619,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/8491\/revisions\/15619"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=8491"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=8491"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=8491"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}