Legal Research and Writing – Week 3 Assignment
Memorandum Exercise
Assignment Instructions: There are numerous errors in the citations in the following passage. Correct the citations using the current edition of The Bluebook. You may need to supply missing information. Copy the passage below into a new Word document, make your corrections in bold font, and submit the document for your Week 3 assignment.
The Plaintiff in this case seeks copyright protection for its directory of political donors. The most fundamental axiom of copyright law is that no author may copyright his ideas or the facts he narrates. Harper and Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. 17 U.S.C. §103(a) provides that the subject matter of copyright includes compilations, but that copyright protects only the author’s original contributions, not the facts of information conveyed.
The key to resolving the tension between these two propositions lies in understanding why facts are not copyrightable. The essential test for copyright is originality. To qualify for copyright protection, a work must be original to the author. Harper & Row, 471 U.S. at 547-549. “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 some minimal degree of creativity. 1 Melville Nimmer, Copyright Law, § 2.01 (2nd ed. 1990). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble, or obvious” it might be. Id.
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. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original, and thus copyrightable. See Sheldon v. Metro-Goldwyn Pictures Corp, 81 F. 2d 49, 54 (2d Circ. 1936).
Originality is a constitutional requirement. U.S. Const. Art. 1, §8, clause 8. This Article authorizes Congress to “secure for limited times to authors…the exclusive right to their respective writings.
In Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884), the court defined “author” to mean “he to whom anything owes its origin; originator; maker.” Id. at 58. The originality requirement articulated in Burrow-Giles remains the touchstone of copyright protection today. See Goldstein v. Cal., 412 U.S. 546, 56-62 (1973). It is the very “premise of copyright law.” Miller v. Universal Studios, Inc., 650 F.2nd 1365, 1368 (5th Cir. 1981). Leading scholars agree on this point. As one pair of commentators succinctly puts it, “The originality requirement is constitutionally mandated for all works.” L. Ray Patterson and Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection, 36 U.C.L.A. L. Rev. 719, 763 (1989) (emphasis in original). As Professor Nimmer agrees, “Originality is a statutory as well as a constitutional requirement.” Nimmer, supra § § 1.08, 1.09.
