The Originality Requirement in U.S. Copyright Law After Transferring the English Statute of Anne to America
What is an original work of art? How much originality must there be in a work in order for it to be copyrightable? Which function does codifying originality serve? The 1710 English Statute of Anne, the first copyright act in history, does not mention that a work must be original in order to be copyrightable, nor do the US Constitutional Copyright Clause or the 1790, 1831 and 1909 US Copyright Acts. The US Supreme Court however, in defining “writings”, articulated that “while the word writings may be liberally construed, as it has been, to include original designs for engraving, prints, etc, it is only such as are original” that merit copyright protection (1879). The Supreme Court went on to define “author” as “he to whom anything owes its origin; originator; maker” (1884).
US copyright law did not need codifying “originality” in an act as it was the law of the land since the late nineteenth century. Still, it was deemed necessary to codify “originality” in the 1976 Copyright Act. How did the codification bring about a change in the definition of “originality”? This is a question not yet comprehensively answered. Traditionally, when researching the history of the US originality requirement, scholars predominantly focus on the heyday of the development of the originality requirement, the nineteenth century. However, the twentieth century has seen major changes in national as well as international legislation which could have major repercussions for the legal definition of “originality” under US law. The changes in what the originality requirement is and what it has turned into is largely unknown, as there is no comprehensive study on how several national and international legal changes in the late twentieth century affected the originality requirement.