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Article
Originality
Virginia Law Review (2009)
  • Alex Stein
  • Gideon Parchomovsky
Abstract

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules’ application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.

Disciplines
Publication Date
Fall 2009
Citation Information
Alex Stein and Gideon Parchomovsky. "Originality" Virginia Law Review Vol. 95 (2009)
Available at: http://works.bepress.com/alex_stein/14/