Originality's Other Path

56 Pages Posted: 1 Jul 2020 Last revised: 8 Jul 2021

See all articles by Joseph Fishman

Joseph Fishman

Vanderbilt University - Law School

Date Written: June 5, 2020


Although the U.S. Supreme Court has famously spoken of a “historic kinship” between patent and copyright doctrine, the family resemblance is sometimes hard to see. One of the biggest differences between them today is how much ingenuity they require for earning protection. Obtaining a patent requires an invention so innovative that it would not have been obvious to a person having ordinary skill in the art. Copyright, by contrast, makes no such demand on authors, requiring an original work of only minimal creativity.

Except sometimes it doesn’t. Puzzlingly, in some copyright cases dealing with musical arrangements, courts have demanded a patent-like level of creativity from putative authors. While these cases might seem like outliers, they have a pedigree that is both lengthy and largely unrecognized. The proposition that copyright originality should require patent-style inventiveness beyond artisans’ everyday creations goes back all the way to an 1850 music-infringement decision by Justice Samuel Nelson. In fact, only four months later, Nelson himself would author the Supreme Court patent opinion that is now credited as the touchstone for patent law’s own nonobviousness doctrine. His corresponding vision for copyright, though, came first.

Drawing on original archival research, this Article challenges the standard account of what originality doctrine is and what courts can do with it. It identifies Nelson’s forgotten copyright legacy: a still-growing line of cases that treats music differently, sometimes even more analogous to patentable inventions than to other authorial works. These decisions seem to function as a hidden enclave within originality’s larger domain, playing by rules that others couldn’t get away with. They form originality’s other path, much less trod than the familiar one but with a doctrinal story of its own to tell. Originality and nonobviousness’s parallel beginnings reveal a period of leaky boundaries between copyright and patent, when many of the Justices considered a rule for one to be just as good for the other. Their recurring intersections, meanwhile, muddy today’s conventional narrative about copyright’s historic commitment to protecting even the most modestly creative works.

Keywords: Copyright, Patent, Originality, Nonobviousness, Derivative Works

JEL Classification: O34

Suggested Citation

Fishman, Joseph, Originality's Other Path (June 5, 2020). 109 California Law Review 861 (2021), Available at SSRN: https://ssrn.com/abstract=3620118

Joseph Fishman (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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