The Sine Qua Non of Copyright
51 Journal of the Copyright Society of the U.S.A. 762 (2004)
34 Pages Posted: 30 Apr 2012
Date Written: April 30, 2012
The United States Supreme Court treats originality as the sine qua non of copyright. How can this abstract quality best be recognized under the law, particularly in the difficult case of multiply produced works? This article grapples with controverted definitions of "original" and "copy," analyzing the positions and interests of various players in the art world with respect to what should count as an original work. Using the case of bronze sculptures that various parties seek to attribute to Auguste Rodin and discussing their status under national and international laws, this article identifies and calls for these laws to converge upon a legal definition of "originality" that is best informed by theories of authenticity, history and market value.
Keywords: copyright, originality, authorship, authenticity, original, copy, Rodin, bronzes, droit moral, moral rights, rights of the artist, VARA, Visual Artists' Rights Act, California fine print statute, art law, John Searle, social facts
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