This article focuses on a specific aspect of copyrighted work, originality.

Do you ever think about why the original is often the most sold flavor of almost anything even after plenty of different versions are made? Snack companies, liquor distillers, and restaurants often have an “original” something, that people are loyal to. The original is what they purchase for a myriad of different reasons.

How often do you hear people order the original at a place they’ve never eaten at? Why pick the original?

People love the original. It says, “I was first,” “I am unique,” “other things are derived from me, but I started this.” Not just with food and drink either. Aaron Burr tells us in Hamilton that he is “inimitable, an original.” People obsess over getting to hear their favorite character’s origin story. It shows the beginning, where they came from, what made them, them.  People want to be original, and will often dress, speak, and think with the idea of original as a focus.

Original is a key word in the standard for copyright that can make or break whether a creative work gets intellectual property protection.

Copyright sounds simple enough, but there are certain things on which you can and cannot hold the copyright. There are even times where people who think they have copyright type that © symbol and say “oh I have a copyright, we are good.”

Afraid not.

This does not mean the standard for copyright is some unreachable secret. Original work of authorship fixed in a tangible medium of expression. The standard to generally justify having copyright. In the past, the court has held a pretty low standard for originality. Writing a rough draft to a short story in a composition notebook? You probably have a form of copyright to that material.

Another common misconception in the copyright world is that someone using another’s idea is automatically copyright infringement. If this were true, how is West Side Story not an infringement of Romeo and Juliet? How can remakes ever be made? How does one get copyright permission from a novel author who has been dead?

Just because not every piece of an artistic work is original does not mean it does not have original parts.

In order: copyrights generally last 70 years after the death of the author (exceptions can apply), so Shakespeare is unlikely turning in his grave over West Side Story. Also, remakes (depending on how closely remade something is) are perfectly fine with either permission of the author, or addition of new and original pieces, i.e. taking a photograph of the Sistine Chapel, editing it, changing lighting details. This addition of original work is often enough to give one copyright to the photograph, not Michelangelo’s famous artistic display.

Originality is a low threshold and is often the key to protecting your copyright. Contact Eden Law if you’re unsure of the validity of your copyright, or the validity of one someone else claims to have.

Written by Christian Dudley

About the author

As an experienced intellectual property attorney and entrepreneur, Rachel is the managing partner and senior attorney of Eden Law. She advises clients on all aspects of intellectual property, including registration and protection. She has worked with small-business entreprenurs battle against large corporations for successful wins in copyright and trademark matters.

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