Originality, Imitation, and Copyright
Zigkeyeah Collier
CMST-223 Kovalcheck
December 2, 2010
Originality, Imitation, and Copyright
“He who imitates must have a care that what he writes be similar, not identical”- Petrach, Le familiari, XXIII (14thc)
The foundation of the copyright law is built on the principle and idealistic American value of originality. Recognized as a Western ideal and value in the 18th century, originality is culturally constructed and accepted, but not truly defined, as an aspect of a created work that is deemed new or novel and is distinguishable from reproductions, copies, or other derivative works. In law, originality has become an important legal concept with respect to intellectual property, where creativity and invention have manifest as copyrightable works. Therefore, the institution of the copyright law protected originality by deeming a piece of work to be paramount while reducing all derivatives to copies or imitations. However, the extent of protection that the copyright law carries is limited, for the copyright law does not protect ideas, themes, or subject matter, only craftsmanship or form (Alfrey, 2000). As a result, under the law two identical pieces of work are able to claim protection, provided the effort behind each work is discernibly independent of one another. There is no statutory definition of infringement, just as there is no statutory definition of originality. However, copying, even if unintentional, can still surmount to a conviction of infringement. Proof must then “rely on circumstantial evidence, which requires scrutinizing the manner and sequence in which the artist worked” (Alfrey, 2000). In other words, the perpetrator must supply sufficient evidence showing that no intention was made to copy the “essential quality of a particular work” causing an unfair advantage of effort of work from the predecessor (Alfrey, 2000). Yet the legality aspect of originality does not linger on similarities and differences in artistic merit,
CMST-223 Kovalcheck
December 2, 2010
Originality, Imitation, and Copyright
“He who imitates must have a care that what he writes be similar, not identical”- Petrach, Le familiari, XXIII (14thc)
The foundation of the copyright law is built on the principle and idealistic American value of originality. Recognized as a Western ideal and value in the 18th century, originality is culturally constructed and accepted, but not truly defined, as an aspect of a created work that is deemed new or novel and is distinguishable from reproductions, copies, or other derivative works. In law, originality has become an important legal concept with respect to intellectual property, where creativity and invention have manifest as copyrightable works. Therefore, the institution of the copyright law protected originality by deeming a piece of work to be paramount while reducing all derivatives to copies or imitations. However, the extent of protection that the copyright law carries is limited, for the copyright law does not protect ideas, themes, or subject matter, only craftsmanship or form (Alfrey, 2000). As a result, under the law two identical pieces of work are able to claim protection, provided the effort behind each work is discernibly independent of one another. There is no statutory definition of infringement, just as there is no statutory definition of originality. However, copying, even if unintentional, can still surmount to a conviction of infringement. Proof must then “rely on circumstantial evidence, which requires scrutinizing the manner and sequence in which the artist worked” (Alfrey, 2000). In other words, the perpetrator must supply sufficient evidence showing that no intention was made to copy the “essential quality of a particular work” causing an unfair advantage of effort of work from the predecessor (Alfrey, 2000). Yet the legality aspect of originality does not linger on similarities and differences in artistic merit,
Cited: Bone, J. "Magical Authors Go to War on Custody of Muggles." The Time (2000). Lexis-Nexis. 18 Mar. 2000. Gaines, J. “Contested Culture: The Image, the Voice, and the Law. Chapel Hill: University of North Carolina Press, 1991. v. Nancy Stouffer. 99 Civ. 11480 (AGS), 124 F. Supp. 2d 836 (S.D.N.Y), 2000. v. Nancy Stouffer. 99 Civ. 11480 (AGS), 221 F. Supp. 2d 425 (S.D.N.Y), 2002. Striphas, Ted. "Harry Potter and the Simulacrum: Contested Copies in an Age of Intellectual Property." Critical Studies in Media Communication 26.4 (2009): 295-311. Thomas, I. “CNN is Mugged by the ‘Muggle Affair.’” Slate. 21 Jul. 2000. Web. 01 Dec. 2010 .