Originality: Does the Copyright Office Hide the Ball?
AIPLA Quarterly Journal, Vol. 37, p. 425, 2009
23 Pages Posted: 17 Jul 2008 Last revised: 31 Oct 2010
Date Written: October 3, 2009
The Copyright Office, incapable in fact of determining the originality of most works, generally makes no attempt when registration is sought. Moreover, most works easily pass the test set out in the well-known Feist case.
Despite that, the Office singles out some types of work and commonly refuses registration for lack of originality. Courts, with one notable exception, have upheld its decisions.
Types of works in issue, however, often signal an agenda driven by subject matter, not originality. This paper argues that, until courts press harder, the Office will continue to hide the ball and fail better to articulate its criteria for selecting works found to warrant enhanced scrutiny.
Keywords: Administrative Procedure, judicial review, Copyright Office, copyright originality, copyright registration, refusals to register copyright
JEL Classification: K20, K23
Suggested Citation: Suggested Citation