Originality & Fixation

A work must reflect original thought.  There must be a minimal spark of creativity.

Non-Discrimination Principle

In assessing originality, judges should not evaluate the aesthetic merit of a work.


Facts that do not owe their original to human authorship lack originality.  Facts that derive from human authorship are sufficiently original to be copyrighted.


Compilation of facts can be copyrighted if there is sufficient creativity present in the selection and arrangement of the facts.

Compilation of Facts

Efforts at creating a work do not give rise to originality.

Sweat of the Brow
































Answer to Question 4

Bill does not hold a copyright in the trivia book because it lacks originality. The fictional events and characters are not unprotectable facts. They are creations of Marti’s mind.

Answer to Question 5

Yes. The aesthetic merit of the artistic work is no basis for denying copyright. It does not matter that Amos intended to capture a different image than what he actually captured. The picture represents original work in a fixed medium.

Answer to Question 6

Likely yes. Rachel may hold a copyright if her work is sufficiently original as a compilation of facts. She must show that she has exercised judgment in the selection and arrangement of facts that she included in the field guide. Likely Rachel can show this because she has selected facts about animals and diseases as well as arranged them according to geographic area. These decisions appear to manifest at least a spark of creativity necessary to satisfy the requirement of originality.

Answer to Question 7

Mary. When Mary recorded the song, Mary fixed an original creative thought in a tangible medium of expression. The fact that the tangible medium no longer exists does not affect Mary’s copyright in the song. Her copyright lives on even though her recording is destroyed. Martin does not hold a copyright in the song because he merely copies Mary’s copyrighted work. Martin’s recorded song lacks originality, so he holds no copyright in the song.

Question 4

Marti creates a fictional story that she publishes in a series of three novels. The novels are an immediate success in the marketplace. After reading the novels, Bill creates a trivia book about the fictional events and characters in Marti’s novels.

Question: Does Bill hold a copyright in the trivia book?

Question 5

Amos is a horrible photographer. Most of his pictures turn out blurry or otherwise out of focus. Much of the time he is late in clicking the button, missing the action that he intended to capture. One day Amos tries to take a picture of a peaceful woman sitting on a park bench, but instead he takes a picture of a horrible mugging at that park (out of focus, of course).

Question: Does Amos hold a copyright in the picture of the mugging?


Answer to Question 1

Nicki holds a copyright in the poem. Roy did not fix his creative thought in a tangible medium of expression. Although Nicki did not think up the words, she is responsible for fixing the expression in a tangible medium, so she holds the copyright.

Answer to Question 2

Johnathan does not hold a copyright in the painting. His painting lacks originality. Although Johnathan has expended great effort in creating the painting, effort does not necessarily give rise to originality. His painting merely reflects the existent originality in the Mona Lisa painting.

Answer to Question 3

No. The formulas represent facts, which are not eligible for copyright protection.

Question 6

Rachel collects data about farm animals and their diseases. She surveys thousands of farmers across the United States about their animals and their diseases. After collecting the data, Rachel publishes her findings in a field guide. The field guide presents her data according to geographic region where the disease has arisen.

Question: Does Rachel hold a copyright in the manual?

Question 7

Mary creates a song that she records. Unbeknownst to Mary, Martin listened to her singing the song and would like to publish it for himself. So when Mary is not looking, Martin destroys Mary’s recording and then makes his own recording of Mary’s song.

Question: Who holds the copyright in the song?

Practice Problems

Question 1

Roy has thought up a poem. Roy has memorized the poem, although he has neither written the poem down nor recorded it. He performs the poem at a public gathering, where a woman named Nicki is present. After hearing the poem, Nicki writes it in her personal journal.

Question: Based on these facts, who holds a copyright in the poem?

Question 2

Johnathan is an artist. He specializes in creating paintings that duplicate existing works. With painstaking accuracy, Johnathan has created an exact duplicate of the Mona Lisa (a painting in the public domain). The process of creating the exact duplicate required Johnathan to spend more than 100 hours studying the original Mona Lisa and painting the replica.

Question: Does Johnathan hold a copyright in his painting?

Question 3

Dan is a scientist. After conducting several experiments, Dan derives chemical formulas that are extremely valuable in the production of a new compound.

Question: Assuming that Dan has written down these formulas, does Dan have a copyright in the expression of these formulas?

A work must be fixed in a tangible medium of expression.  The work must be fixed for more than a transitory duration.