Originality Proxies: Toward a Theory of Copyright and Creativity

Abstract

Drawing upon the abundant stock of originality jurisprudence in the area of photography, this article argues that courts are ultimately doomed to fail in the quest to explain, in a satisfying way, how a work of authorship is original in and of itself. Caught between the impermissibility of relying upon aesthetic virtues, on the one hand, and the degree of effort expended by an author, on the other, the closest courts can come to identifying originality, at least under the current copyright framework, is through proxies for the legal concept. Building upon the use of the proxy device by others in intellectual property scholarship, this article identifies three that serve this function: the proxy of ontology, the proxy of narrative, and the proxy of comparison. Given the courts’ inability to reach originality in an unmediated fashion, the current originality threshold, which is low, should be left intact and the problematic aspects of copyright’s expansiveness should be checked at other points.

Keywords: Copyright, Photograph, Photography, Creativity, Originality, Amateur, Professional