Restating Copyright Law's Originality Requirement

Abstract

In 2015, the American Law Institute (ALI) launched an effort to develop a Restatement of Copyright Law, a project still mired in controversy both because of the statutory nature of copyright law and the deep, abiding ideological disagreements about copyright policy. The ALI drafting group had worked through several versions of some sections of the draft Restatement by late 2020; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the project that have crystallized. This Article reviews the 2020 draft Restatement’s presentation of the threshold requirement for copyright protection in the United States: that copyright protects only works that embody “originality.” In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Missing in the draft Restatement is the Court’s richer discussion of the originality threshold being that of an “intellectual” creation as well as the role of personality and human judgment in establishing originality. The Article also discusses some doctrinal missteps that the draft Restatement makes; if uncorrected, these mistakes will leave us with a Restatement that is a partial misstatement of American copyright law. This Article is part of a symposium issue of the Columbia Journal of Law and the Arts.