The Court also tells us originality has two components: independent creation by the author and creativity. But they are mere heuristics for uniqueness. Independent creation is over-inclusive; creativity is both over- and under-inclusive. They do not offset each other, so gaps remain. Courts plug most of the gaps with limiting doctrines and the substantial similarity standard. To put it imprecisely: (independent creation) + (creativity) + (limiting doctrines) + (substantial similarity) ≈ uniqueness.

This patchwork makes a hash of copyright doctrine. We can sort out doctrine by focusing directly on uniqueness. Uniqueness explains why a careless snapshot is protected more than a scientific database, and why a cartoon character is protected more than a literary character. Uniqueness also defines the boundary between copyright and utility patent, and illuminates the seemingly recurrent influence of the sweat of the brow. Finally, uniqueness largely unifies the many limiting doctrines, including the useful article doctrine, the idea- and fact-expression dichotomies, and others.

Yet, some limiting doctrine cases cannot be explained without supplementing uniqueness with a “dominance principle,” which is akin to antitrust and which limits protection for work even if it is unique. Examples of unique but dominant work include the QWERTY layout, Lotus 1-2-3 menu, phonebook listings, and very fanciful names.