united-states copyright
In the United States, what is the threshold for &quot;originality&quot; in order to have copyright protection?
<p>In the United States, what is the threshold for &quot;originality&quot; in order to have copyright protection?</p>
<p><a href="https://www.copyright.gov/title17/92chap1.html#102" rel="noreferrer">17 U.S.C. § 102</a> says that copyright protection subsists &quot;in original works of authorship...&quot;. How original does the work need to be?</p>

<h3>Originality requires independent creation plus a <em>modicum of creativity</em></h3>
<p>This was answered in <em>Feist Publications, Inc. v. Rural Telephone Service Co.</em>, Inc., <a href="https://supreme.justia.com/cases/federal/us/499/340/" rel="nofollow noreferrer">499 U.S. 340</a> (1991):</p>
<blockquote>
<p>originality requires <em>independent creation</em> plus a <em>modicum of creativity</em>.</p>
</blockquote>
<blockquote>
<p>Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least <em>some minimal degree of creativity</em>. To be sure, <em>the requisite level of creativity is extremely low; even a slight amount will suffice</em>. The vast majority of works make the grade quite easily, as they possess some creative spark, &quot;no matter how crude, humble or obvious&quot; it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. [Citations removed]</p>
</blockquote>
<p>This connection to creativity is explained more in the <a href="https://copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf" rel="nofollow noreferrer">United States Copyright Office's Compendium at 308.2</a>, citing entirely from <em>Feist</em>.</p>
<p>The US Copyright Office presents eleven categories of things that &quot;do not satisfy the creativity requirement&quot;<sup>1</sup> (308.2; <a href="https://copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf" rel="nofollow noreferrer">313.4(A)-(K)</a>):</p>
<ol>
<li>mere copies</li>
<li><em>de minimis</em> authorship: &quot;copyright protects only those constituent elements of a work that possess more than a <em>de minimis</em> quantum of creativity&quot; (citing <em>Feist</em>, p. 363); e.g. substitution of pronouns, correction of spelling, three-note sequences, are not sufficiently creative</li>
<li>words and short phrases</li>
<li>works consisting entirely of information that is common property; e.g. calendars, schedules of sporting events</li>
<li>measuring and computing devices (with the exception of separable creative features distinct from what makes the article useful)</li>
<li>listings of ingredients or contents</li>
<li>blank forms</li>
<li>characters</li>
<li>scènes à faire</li>
<li>familiar symbols and designs</li>
<li>mere variations of coloring</li>
</ol>
<h3>Canada has taken a different approach</h3>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>For a comparative look, Canada has rejected creativity as the hallmark of originality. In <em>CCH Canadian Ltd. v. Law Society of Upper Canada</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2125/index.do" rel="nofollow noreferrer">2004 SCC 13</a>, the Supreme Court considered the standard from <em>Feist</em> but took a different approach:</p>
<blockquote>
<p>an “original” work under the <em>Copyright Act</em> is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, <em>an original work must be the product of an author’s exercise of skill and judgment</em>. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, <em>creativity is not required to make a work “original”</em>.</p>
</blockquote>
<h3>Application</h3>
<p>Many answers on this site apply this standard. E.g.</p>
<ul>
<li><a href="https://law.stackexchange.com/a/6570/46948">Copyright of retyped public domain text</a></li>
<li><a href="https://law.stackexchange.com/search?q=%22modicum+of+creativity%22+is%3Aanswer">List of answers referring to a &quot;modicum of creativity&quot;</a></li>
</ul>
<p>You can also browse <a href="https://www.google.com/search?q=%22modicum+of+creativity%22+site:casetext.com" rel="nofollow noreferrer">published decisions applying this standard</a> (a Google search of casetext.com).</p>
<hr />
<p><sup>1. Although, I recognize for several of these categories there are additional or alternative rationales, and even statutory bars (e.g. 102(b)), for not granting copyright protection.</sup></p>
