Academic journal article
By Durham, Alan L.
William and Mary Law Review , Vol. 44, No. 2
INTRODUCTION I. "AUTHORSHIP" AND "ORIGINALITY" A. Works of Genius B. A Spark of Creativity C. A Clap of Thunder D. Random Numbers II. INDETERMINACY AND THE ARTS III. AUTHORSHIP AND PROPERTY RIGHTS A. The Natural Rights of Authors and the Social Benefits of Authorship B. Romantic and Un-Romantic Authorship C. The Role of "Originality" 1. Diversity of Expression 2. Identification 3. Natural Rights 4. Defining the Commons IV. SEEKING AUTHORSHIP IN INDETERMINATE WORKS A. Hypotheticals 1. Artist A 2. Artist B 3. Artist C 4. Artist D B. The Random Muse C. Suggestions D. Caveats 1. Systems 2. Competing Claims 3. Other Issues CONCLUSION
One of the more elusive concepts in copyright law is that of "authorship." Authorship refers to the production of "original" works, meaning works which the author has newly created, as opposed to copied from other sources, and which possess at least some minimal degree of creativity. (1) Copyright protects "original works of authorship" (2) and extends only to what is original in such works. (3) Fixing the boundary between private property and the public domain, (4) the authorship/originality requirement has been described by the Supreme Court as "the very `premise of copyright law'" (5)--the "touchstone," (6) "bedrock principle," (7) and "sine qua non" of copyright. (8)
Metaphors like "bedrock" suggest a concept of authorship that is immutable, sharply defined, and reassuringly solid. Authorship, however, is so olden characterized by what it is not that it is sometimes difficult to say, positively, what authorship is. Consider a scholar who prepares a new English-language translation of the Iliad, with notes and an introduction based on the scholar's historical research. The scholar can claim no right to the original work, or to any aspect of the translation that accuracy compels. (9) Nor can the scholar prevent others from reciting the facts revealed by his research. The facts may be original in the sense of having appeared nowhere else, but they were not created by the scholar; they were discovered by him or, in a sense, "copied from the world." (10) Even choices reflecting matters of taste (e.g., this poetic turn of phrase instead of that pedestrian one) are influenced, if not determined, by a variety of external factors: the books the scholar has read, the lectures he has attended, perhaps even the genes he has inherited. Examined too closely, the process of authorship can seem less a conscious and creative act than a mechanical confluence of forces. It can be difficult to locate the "maker" (11) who wills into existence that which is personal and new. (12)
On the other hand, the complexity of the Iliad and the richness of the English language mean that countless translations could be written. The facts revealed by the scholar's research could be expressed in a variety of ways. While the variations that mark the scholar's work may be determined by his chromosomes or his experience, his nature or nurture, they are still his variations. Like most copyrightable works, whether they are artistic creations, literary works, musical compositions, or some other form of expression, the scholar's translation of the Iliad bears characteristic attributes of authorship: the work is unique; (13) it owes its existence to the scholar; it is the product of the scholar's intellectual labor; its form reflects the author's intentions and conveys his message; and it reflects the scholar's individuality--his personality, his experiences, his "self."
Yet consider the following hypotheticals, moving now from the field of scholarly translation to that of abstract painting, where unfettered originality would seem most feasible.
* Artist A notices a pleasing pattern on the floor of a hardware store, where countless people have carelessly dripped paint. …