Hoisting Originality

participated demonstrated the operation of this circle in a most under miller's proposed standards? these questions illustrate that regarding enhanced moral rights protections.36 adler also writes about school). 29. id. some courts also have incorporated a focus on whether reasonable on a practical level, any reform of the originality requirement in these situations, courts (and perhaps copyright examiners in noninfringement on the ground that the training manuals at issue test relies upon the sequences of the author's actions and decisions framers include it with unanimous approval?, 36 am. j. legal hist. 361, 362 whether these criteria are independent. for example, my read of observer" traditionally has been invoked to decide other most recently, copyright scholars 9. see generally kwall, supra note 6. however, the concept of "destruction art" is ubiquitous in the from conventional expression."3 thus, there is no reason to preclude such evidence in "substantial creativity." this should not be especially problematic works, to declare how the originality requirement must be understood as involving "duties to the public as well as rights in satisfied."17 such a how a substantial creativity standard of originality can be applied. more fundamentally, however, it is not clear to me why "the clearly rauschenberg's erasure would 27. id. at 475-76. response to the invention of photography, 65 u. pitt. l. rev. 385, 437 (2004). with respect to issues of proof, miller seems to contemplate that determination should not be made to depend entirely on the times," 88 b.u. l. rev. 685, 704 (2008). applied to works with lower originality than copyright law,7 property: an imminent constitutional collision, 67 geo. wash. l. rev. 359, concerns regarding dissemination of knowledge and preservation the beauty of our profession is that we continually have the (1992). to the design process and the nature of the work . . . ."39 which feist ruled out as a basis for satisfying the "modicum" of feist court did not strip congress of its voice on all originality will necessitate a corresponding reform of the copyright and refining the originality requirement, either 10. situation mgmt. sys., inc. v. asp consulting llc, 560 f.3d 53, 62 (1st 3. id. at 477. thus, i would augment evidence of unconventionality with witness battles regarding a work's conventional nature within the focus on the photographer's input as consisting of pre-shutter a 377 n.104 (1999). 17. see willliam patry, the enumerated powers doctrine and intellectual this situation stands in i have written elsewhere that copyright ownership ought to be unconventionality should be the new sine qua non of originality. conceptual issues in copyright law such as substantial similarity. just an unorthodox idea? and how would appropriation art fare heightened standard of originality. in this respect, if given the standard proposed by miller. for example, in 1953 robert compelling way. i would like to conclude by "hoisting" the level between its practical implementation and conceptual grounding. applications. nonetheless, the use of a patent law expression . . . ."40 pamela samuelson, enriching discourse on public domains, 55 duke l.j. 783 11. diane leenheer zimmerman, it's an original! (?): in pursuit of invocation of a patent law analogy in the context of the thus, current low standard of originality for copyright law but invoking chelsea galleries today would qualify as copyrightable subject 26. id. at 487. opportunity to engage in the "circle" of creativity. the original this view, if ever 4 depaul j. art, tech. & ip law [vol. xx:1 therefore, well-suited as objective evidence in legal disputes.29 copyright's development. as william patry has observed: "the analogy in assessing the issue of contributory infringement does, at judge's subjective perception. moreover, his proposed question of whether copyright itself ought to be refashioned with a immersion conference, in new york city (2006) (sponsored by albany law discussions in the middle of the twentieth century. for years now, system of protection may seem very remote, hints of this idea exist covered under copyright law.9 exclusions will not, however, address all of the originality issues, additionally, miller's call for reforming copyright originality by 34. see feist publ'n inc. v. rural tel. serv. co., 499 u.s. 340, 346 (1991). was not to challenge the current standard of the register under oath that the work is original, but as a rule no 6. see roberta rosenthal kwall, the soul of creativity: forging a protected here--an original work of expression, a work of labor, or informed by patent law's nonobviousness standard. as noted christine farley has observed that at qualifies his proposal by explaining that he does not recommend 33. id. at 283. in my view. in burrows-giles, the supreme court recognized that attempt is made to search probingly for evidence of prior works returning to adler's discussion of rauschenberg, adler makes it further problem, at least in the context of this particular genre, is issues; instead, the court only set a threshold standard. congress through a graduated system or a more unified "hoisted" framework 18. sony corp. v. universal city studios, inc., 464 u.s. 417, 439-40 (1984). to apply moral rights to a wider array of works than are currently my approach to moral rights does not, however, foreclose the standard. miller appears to endorse a "work-centered" creativity whether even modern contemporary art visionaries would fail to patent."20 non-existent moral rights laws. in reality, however, my purpose in encrusting a skull with diamonds. this work was sold to an 24. id. prior examination by an authoritative tribunal, it is more important consisted of nothing more than a month's long effort by clear that his erasure work was unorthodox in its time. now, professor miller's paper certainly lives up to this representation. the time of this decision, the prevailing view was that the image in the design process, but also leaves room to consider the nature time of rauschenberg's endeavor. adler notes that in this milieu, "kosher" approach from the standpoint of the history of would miller say this satisfies his proposed standard for wisdom as the mark of a protectable invention . . . ."2 the line of decisions addressing the issue of conceptual unorthodox works consist almost entirely of labor and sweat, unorthodox? of course! moreover, it is not entirely clear to me whose narrative would assessment, based in part on the standard in burrow-giles rather copyright reform on a more general basis. the need for increased in proposed federal legislation that would afford a form of sui underscores miller's inclination to equate creativity "with an least in my mind, have a completely different feel from the another difficulty with miller's approach lurks on the cusp standard that are also illustrated by the modern art genre. 2009] hoisting originality: response 7 he urges a standard that seems to be therefore, i dedicate this commentary to my dear friend and now it seems to me that an elevated standard for copyright originality 38. id.at 60. rauschenberg erasing a drawing by willem de kooning, resulting superficial level. the supreme court has invoked patent law miller, along with two commentaries on the paper.1 12. irah donner, the copyright clause of the u.s. constitution: why did the the author's narrative and the work itself. invoking patent law's standard is intriguing, at least on a as miller notes, the concept of originality has captured drawing on some significant scholarly attention.13 2009] hoisting originality: response 3 meet miller's proposed standard for originality. but the operative discussion. miller reads my own work on originality and moral inc. v. asp consulting, llc, a copyright infringement suit in was a paper about which i would want to think deeply, and 4. id. at 484-85. 2 depaul j. art, tech. & ip law [vol. xx:1 works, to the extent the united states contemplates the enactment intellectual property law, founding director, depaul college of law center rights, originality in context,5 originality can be proved both by prospective copyright owners in information. relevant to these concerns was the framers' desire the issue of originality by addressing the values that copyright law professor james gibson of university of richmond law school 1. the idea of a virtual workshop, complete with widespread virtual 20. lange & powell, supra note 18, at 55. but also with virtually every other country with moral rights the lines of application and theory are easily blurred. sony's "substantial non-infringing uses"18 originality? if so, one has to wonder exactly what is being 35. adler, supra note 31, at 298. most questionable whether the many such works that pervade the protection, especially if this were done as part of a larger effort of copyright's elusive essence, 28 colum. j.l. & arts 187, 189 (2005). see also ways that were not imaginable during the last go-round of reform instead that copyright "draw on patent law's nonobviousness that might throw suspicion or doubt upon that assurance."23 the examination procedure), as well as by accused infringers who analogies in applying copyright law on at least two occasions-- activity facilitated this conception. this type of evidence to be limited to the objective character of the types of subject matter characterized by low levels of creativity, fundamental issue of what type of subject matter ought to qualify law. in terms of miller's suggestion that moral rights should be multiple levels of originality. although such a content-specific perceptions of reasonable ordinary observers. burrow-giles is an should be the key to originality. in fact, a recent paper by amy 2. joseph scott miller, hoisting originality, 31 cardozo l. rev. 451, 463 in a copyright case for the author to prove originality.37 13. miller, supra note 2, at 462-463 beholders of the work are able to conceptualize its artistic aspects miller's article by the decision in situation management systems, suggests (although perhaps with "tongue in cheek") might not a categorical standpoint but lacks substantial creativity in its international convention on economic, social and cultural rights of 1966. 22. id. at 464. it seems as though such a standard will inevitably foster expert stark contrast to that of patent registration procedure. correspond to the level of one's contribution. moreover, i believe than an "author-centered effort assessment."27 37. burrows-giles lithogroaphic co. v. sarony, 111 u.s. 53, 59-60 (1884). we do know that the framers were motivated by reflects the creator's artistic judgment independent of functional opportunity to re-evaluate copyright's originality requirement, i for a system that is generally perceived as increasingly ailing and at the university of richmond school of law. the workshop approach, given that de kooning was regarded as an icon at the emphasize that i agree with miller's point that the originality meet his proposed standard. could see this working in connection with my recommendations creativity." i would also propose for consideration an amendment as miller proposes, fosters the idea that one's rights should because copyright law lacks the patent system's safeguard of a notwithstanding these reactions to miller's articulated standard, work.41 21. miller, supra note 2, at 468 have pondered whether a graduated system of originality is the markings."32 copyright standard for originality does not do the job, and proposes intellectual property scholars have proposed a multitude of cures � 2010 by roberta rosenthal kwall, raymond p. niro professor of nations, a goal that could only be achieved through the enactment at the trial level, adler suggests the very problems inherent in this approach. adler reflects "the unconventional, the unpredicted, the unorthodox."4 31. amy adler, against moral rights, 97 cal. l. rev. 263, 265 (2009). moral rights law for the united states (forthcoming 2010). statutory standard for originality that depends upon "substantial matter because they are no longer seemingly "unorthodox." a has promise, and i have already laid the groundwork for how i works.8 conception of `art.'"33 (2007). participation beyond that of the initial contributors, is a wonderfully different (2009). the problem, as we all know, is that copyright has developed in order to defend against an infringement claim.26 40. miller, supra note 2, at 479. protects; unfortunately, however, there is no one clear answer to former colleague, kathy strandburg, whom all of us at depaul in hoisting originality, miller argues that the current statutory creativity necessary for originality.34 virtual workshop in which both professor miller and i miller recognizes this distinction, however, and during the relatively brief period we had to write our responses to virtual workshop sponsored by the intellectual property institute 5. roberta rosenthal kwall, originality in context, 44 hous. l. rev. 871 met the minimal originality standard.10 "destruction art" which, in effect, challenge the application of the that "hoisting" the statutory originality requirement is a completely a scholar for whom my personal respect is evident in so many of my own works. cir. 1987). which the first circuit vacated the district court's finding of graduated system of originality also was a major theme in the informal invited me to comment on miller's work, he mentioned that this this commentary originally appeared as part of the inaugural regarded as more "original" for purposes of applying copyright's idea and i thank professor james gibson of richmond for inviting (and how to prove originality in copyright law. i also want to genre at issue. 23. lange & powell, supra note 18, at 39. world of contemporary art. under miller's proposal, it is at least above, the essence of his position appears to be that nonetheless, for reasons i have explored in my other of a more comprehensive form of moral rights protections than encouraging) me to participate and for pairing me with professor justin hughes, that copyright adopt the same standard as patent law,21 (2006)(identifying thirteen conceptions of the public domain). 32. id. at 283 (quoting calvin tomkins, off the wall 97 (1980)). 1957, 110th cong. � 2 (2007). unorthodox insofar as the "reply/commentary" genre is concerned. 30. miller, supra note 2, at 462. of originality of this commentary by doing something rather as diane zimmerman has reminded us, it makes sense to frame this question.11 in furtherance of pre-shutter, "composition-making" activity.38 prevalent at that time and the need for preserving the notion that (thus raising the above issue regarding protections. notable exceptions are two of the instruments new and original fashion designs for a three-year period.15 position would be inconsistent not only with the berne convention see also david l. lange & h. jefferson powell, no law: intellectual additional evidence focusing on the author's narrative and the of a public domain necessary to insure access to necessary particular execution. practice."31 copyright originality but rather to devise an appropriate and viable expression for [a given] genre at the time the author authors it"30 attention to originality was, somewhat ironically, evidenced even copyright applications are approved.24 property in the image of an absolute first amendment 53 (2009). role that destruction has come to play in contemporary artistic substantially different from the more exclusive interest . . . in a to the copyright statute that eliminates from coverage particular the importance of the claimant's narrative also is underscored by writing this article, as well as my forthcoming larger work on requirement--with its focus on departure from conventional determinations of originality, and the introduction of such "patent-inspired" one.22 this govern whether a given work would meet this proposed originality damien hirst, "the best-selling living artist," who sought to investor for a hundred million dollars.35 39. brandir int'l, inc. v. cascade pac. lumber co., 834 f.2d 1142, 1145 (2d but rather a because cases will arise in which a work is otherwise covered from considerations, requires the claimant to furnish "evidence relating write, "the nature of the property interest at stake in copyright is thus raising the bar in a transparent manner. such statutory 25. miller, supra note 2, at 486. "erasing a drawing by de kooning was a shocking, sacrilegious her work provides numerous examples of this laments how moral rights regimes fail to recognize "the defining moral rights,6 important precedent in this regard, because it focused on the copyright office does not probe deeply into the status of a work's and grokster's produced by photography was free of human intervention and, copyright law, however, is that it already contains the seeds for act" which "captured, perhaps better than anything else 16. see roberta rosenthal kwall, the author as steward "for limited as existing independently of function. the "ordinary reasonable originality, according to miller, should be judged by whether it furnishing an incomplete basis for the standard's articulation and for protection in the first place. as david lange and jeff powell (forthcoming 2009) available at http://ssrn.com/abstract=1361911. the idea of a 19. mgm studios, inc. v. grokster, ltd., 545 u.s. 913, 935-36 (2005). protections than miller's own law review article, which he i wonder, however, applying for a copyright25 application. i would prefer to see an approach that is more nuanced and capable of greater creativity in application. the beauty of 14. see gideon parchomovsky & alex stein, originality, 95 va. l. rev. rauschenberg created "erased de kooning drawing," which a given work embodies a unique authorial voice that "stands apart the "creative" aspect of as an endorsement for keeping the 41. id. staging of the process as the justification for originality, which admittedly, this was an unorthodox and radical 8 depaul j. art, tech. & ip law [vol. xx:1 made sense in terms of both the artistic view of photography meet miller's proposed originality standard because their contemplate the extension of moral rights to non-copyrightable burrow-giles is that the court was not impervious to "author- currently exists under vara, i do not believe the best approach is 36. see kwall, supra note 6, chapter 6. evidence would serve as a useful counterpart to evidence based on would certainly be open to elevating the standard for copyright must assemble a "rich factual record" showing conventionality in rauschenberg did, his scandalous assault on a particular a heightened standard of originality for purposes of our currently originality: "the application form obliges the applicant to assure author-free and objective.28 produce the most expensive work of contemporary art by effort." burrow-giles focused on the photographer's pre-shutter in a "sheet of paper bearing the faint, ghostly shadow of its former the first instance) will simply have to decide what constitutes standard for moral rights in the context of the current copyright "inducement"19 unlike miller, however, i do not understand so from composing the international bill of human rights, which generis, or copyright-like, protection for the overall appearance of 6 depaul j. art, tech. & ip law [vol. xx:1 discussion at the interdisciplinary intellectual property & technology the work,"16 moreover, in applying the above test for conceptual separability, there are other complications inherent in the "unorthodox" by roberta rosenthal kwall an early point in time, courts were sensitive to the importance of question is whether rauschenberg's "creation" ought to be featured a paper entitled hoisting originality by professor joseph degree to which [a] work moves away from conventional 7. miller, supra note 2, at 494. hoisting originality: a response of the work itself. in fact, i believe this type of evidence 15. design piracy prohibition act, h.r. 2033, 110th cong. � 2 (2007); s. "unconventionality" standard potentially has relevance to a ineffective. it makes sense that originality should be part of this miller's recommendation would call for an assessment of whether for intellectual property law and information technology. formally enacted, might result in a system of protection based on determination of the requisite originality, although i see it as separability, which, in assessing whether the design process narrative supplied by the photographer with respect to his actions registration system, an area miller does not address in detail. the best way to promote copyright's objectives.14 28. see christine haight farley, the lingering effects of copyright's 8. these instruments are the universal declaration of human rights and the of copyright laws that would encourage authorship activity.12 2009] hoisting originality: response 9 cir. 2009). of these prior observations, i recommend that we consider a author's thoughtful, considered engagement with the stuff of post-shutter activities are free of artistic choice, and thus remain is free to set a higher standard, or, in protecting particular types of 2009] hoisting originality: response 5 when very much miss. for the united states to be "culturally competitive" with other