COPYRIGHTS: PART 1, The Originality Requirement Under US Copyright Law
US copyright law protects original works of authorship.
Per the U.S. Supreme Court, original means “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.”
Therefore, originality has two elements:
Independence: The work must be created without directly copying or adapting from another source.
Creativity: It is a very basic threshold. It is not about artistic merit. It is not about how innovative it is. You can recreate the wheel and still be eligible for copyright protection.
Creativity
Because the threshold for creativity is so low, I think it is most helpful to provide a few examples of what does not meet the threshold of minimal degree of creativity. Remember, these are just examples and not an exhaustive list.
The following are generally NOT copyrightable because they don’t meet the minimal degree of creativity:
Recording by pre-positioned recording devices, such as Ring cameras or dash cams. This is not to say that such footage is in the public domain, as there may be people who may have protectable interests in the footage, including privacy and publicity rights.
Recipe consisting of a list of ingredients with required instructions. Courts have held that a recipe book will only receive copyright protection for additional creative elements, like a story about how your grandmother used to bake these cookies when you were a child.
“Inevitable Similarity” where different creators will most likely independently arrive at similar or identical results because there are only a limited number of ways to express an idea, such as rules to play a game. There are only so many ways to describe the rules.
Scenes a faire, which refers to situations, characters, settings, or incidents that are standard or customary to a particular genre and are, therefore, not protectable. For instance, sleeping in a casket, not going out in the sunlight, being afraid of garlic are not copyrightable elements of a vampire novel.
Common geometric shapes or other familiar symbols (such as a stop sign, smiley face or peace symbol). While the symbol itself might not be copyrightable, specific artistic representations of the symbol (like a unique graphic design incorporating the symbol) can be copyrighted.
Works consisting entirely of commonly known information or self-evident facts, containing no original authorship, such as standard calendars, or a directory of students. Only the unique expression or presentation of these ideas can be protected. For instance, while the raw data or facts in a research paper aren’t copyrighted, the way they are presented or analyzed can be.
Independence.
Again, independently created means the work was created without directly copying or adapting from another source.
Simple, right?
I will start with the assumption that when we create content, we intend to create it independently and not copy others. However, there is this thing called unconscious copying that has implications under copyright law.
What happens if you are unconsciously influenced by others' copyright work?
The doctrine of subconscious copying allows for liability without regard to the intent or knowledge of copying. In other words, you can be on the hook for copying someone else's work, even if you honestly didn't mean to or didn't even know you were doing it.
If you are in a niche where there are a handful of prominent voices, their works are the most likely to seep into your subconscious when creating content.
To prevent unconscious copying: One, be aware of this. And, two, make sure you are writing in your own voice.
Ideas are freely usable, but the expression needs to be original.
Got questions. Reach out!