Santa Clara Law Review Volume 40 | Number 2 Article 1 1-1-2000 Deriving Orginality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work Steven S. Boyd Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Steven S. Boyd, Deriving Orginality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work, 40 Santa Clara L. Rev. 325 (2000). Available at: http://digitalcommons.law.scu.edu/lawreview/vol40/iss2/1 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. ARTICLES DERIVING ORIGINALITY IN DERIVATIVE WORKS: CONSIDERING THE QUANTUM OF ORIGINALITY NEEDED TO ATTAIN COPYRIGHT PROTECTION IN A DERIVATIVE WORK Steven S. Boyd* "[T]here is no new thing under the sun."' I. INTRODUCTION Innovations in science and technology constantly expand the concept of creative expression, yielding media never be- fore contemplated.2 These novel and diverse forms of expres- sion continue to challenge the boundaries of the existing ru- bric of copyright laws by forcing jurists and scholars to reconsider fundamental concepts of intellectual property pro- tection, such as originality in copyright law, in the context of cutting edge media.3 At times, the legal community must * Attorney of Law, Locke Liddell & Sapp LLP, Houston, Texas. LL.M., University of Houston Law Center; J.D., South Texas College of Law; B.S., Uni- versity of Texas, Austin. 1. Ecclesiastes 1:9. 2. See H.R. REP. NO. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664 [hereinafter H.R. REP. NO. 94-1476]. 3. See J. Lahore, Reprography Reproduction, in INFORMATION TECHNOLOGY: THE CHALLENGE TO COPYRIGHT (J. Lahore ed., 1984) ("In no branch of the law other than copyright has the incidence of new technologies revealed so many gaps and deficiencies for which the remedy can only be regu- lation and supervision [by the legislature].") (quoting Comment on the Review of Audiovisual Copyright Law in Australia, 56 AUSTL. L.J. 621, 622 (1982)); David Ladd, Securing the Future of Copyright: A Humanist Endeavor, 9 COLUM.-VLA J.L. & ARTS 413, 414 (1985); Michael Wurzer, Note, Infringement of the Exclu- sive Right to PrepareDerivative Works: Reducing Uncertainty, 73 MINN. L. REV. 1521, 1524 n.16 (1989) (offering that technological innovation is a problem that will always affect copyright law) (citing Sony Corp. v. Universal Studios, 414 325 326 SANTA CLARA LAW REVIEW [Vol. 40 modify existing boundaries to accommodate technology, dem- onstrating that copyright law is not written in stone but, to the contrary, is a morphing set of rules designed to adapt to modern applications. When viewing copyright law at its most fundamental level, two concepts form the threshold for receiving copyright protection. First, a work must be an "original work of author- ship."4 Second, the work must be "fixed in any tangible me- dium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communi- cated," with or without "the aid of a machine or device."5 From this basis, the two touchstones of copyright protection- "originality" and "fixation"-continue to develop distinct meanings peculiar to the law of copyright.' Focusing on the prerequisite of originality, courts repeatedly hold that a work is original if the author independently created the work and the work "possesses at least some minimal degree of creativ- U.S. 417, 430 (1983)). 4. 17 U.S.C. § 102(a) (1994); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359 (1991); Entertainment Research Group, Inc. v. Genesis Crea- tive Group, Inc., 122 F.3d 1211, 1218 (9th Cir. 1997), cert. denied, 523 U.S. 1021 (1998). 5. 17 U.S.C. § 102 (1994). (a) Copyright protection subsists, in accordance with this title, in origi- nal works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, re- produced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following catego- ries: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of author- ship extend to any idea, procedure, process, system, method of opera- tion, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Id. 6. See NEIL BOORSTYN, BOORSTYN ON COPYRIGHT 2-2 (Supp. 1995 & 1996). But see Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908 (3rd Cir. 1975) ("It is true that originality is not a prerequisite of copyright, and even a modicum of creativity may suffice for a work to be protected.") (emphasis added). 2000] DERIVING ORIGINALITY ity."7 Even at this most fundamental level of copyright law, courts continually struggle to resolve the friction between traditional concepts of copyright protection and the increas- ingly innovative applications of those concepts. This article encapsulates the subtleties that have devel- oped throughout the courts' progress in defining the essential concept in copyright law known as originality-specifically the originality required in derivative works.' Initially, this article introduces the basic concept of originality, describing the constitutional and statutory framework that grants courts the authority to mold its meaning and application.! After fil- tering out the integrated ideas of novelty and creativity from the distinct requirement of originality,1" the focus of this arti- cle shifts to the quantum of originality necessary to attain copyright protection." Although proof of a quantum of origi- nality serves as a threshold requirement for any work seeking copyright protection," this discussion ultimately focuses on the vacillating quantum of originality necessary to secure copyright protection in the emerging arena of derivative works. 3 Finally, the discussion proffers a proposal for simpli- 7. See, e.g., Feist Publications,499 U.S. at 345; Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1373 (10th Cir. 1997). 8. See H.R. REP. No. 94-1476, supra note 2, at 52 (stating that court deci- sions should guide the Copyright Office on what constitutes an original work of authorship); see also Feist Publications, 499 U.S. at 357; Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship," 1991 DUKE L.J. 455, 459-60 n.ll (1991). 9. See infra Parts L.A and I.B.1-2 (discussing the fundamental and statu- tory bases for copyright protection). 10. See infra Part I.B.3-4 (distinguishing originality from the concepts of novelty and creativity). 11. See infra Part II (introducing the basis of copyright law and addressing the rudimentary concerns in copyright law). 12. See Feist Publications, 499 U.S. at 345. 13. See infra Parts III and IV (illustrating the development and nuances in assessing the quantum of originality needed to attain protection in a derivative work, regardless of the public domain status of the underlying work). As stated in 17 U.S.C. § 101: A "derivative work" is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fic- tionalization, motion picture version, sound recording, art reproduc- tion, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of an edito- rial revisions, annotations, elaboration, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work." 17 U.S.C. § 101 (1994). 328 SANTA CLARA LAW REVIEW [Vol. 40 fying the copyright application process, requiring the same quantum of originality to attain copyright protection in a de- rivative work, regardless of the status of the work.'4 A. The Sine Qua Non of Copyright "A prime requisite for copyright protection under the Constitution is originality."'5 As Justice O'Connor stated in Feist Publications v. Rural Telephone Service Co., "[t]he sine qua non of copyright is originality." 6 Even a cursory review of concepts inherent to copyright protection establishes origi- nality as the very essence of protection. Throughout copy- right jurisprudence, the originality requirement remains the single pervading prerequisite 7 to copyright protection, regard- less of the form of work.' Originality is itself a fluid concept, not an objective crite- rion. Therefore it is constantly being refined by the courts. As a starting point for analyzing originality, it can be de- scribed as a foundation for protection," requiring that a given work be original to the author. 9 Because originality flows from the efforts of a particular author, it necessarily follows that an original work must not be more than a mere copy." The work must embody some modest amount of individual in- tellectual labor in order to qualify as a "work of authorship" entitled to copyright protection.' Although originality appears to be objective in nature, 14. See infra Part IV. 15. Hearings on S. 597 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Comm. on the Judiciary, 90th Cong. (1967) (statement of Douglas A. Anello, National Association of Broadcasters). 16. Feist Publications, 499 U.S. at 345; accord Warren Publ'g, Inc. v. Micro- dos Data Corp., 115 F.3d 1509, 1515 (11th Cir.