Document Type
Article
Publication Title
California Law Review
Publication Date
2021
ISSN
0008-1221
Page Number
861
Keywords
originality doctrine, copyright, patent, intellectual property
Disciplines
Intellectual Property Law | Law
Abstract
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 analogously 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.
Recommended Citation
Joseph Fishman,
Originality's Other Path, 109 California Law Review. 861
(2021)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1216