In casual conversation or art criticism, we tend to use the word original to describe a new work that stands out for one reason or another. But in the world of copyright law, original is not that kind of judgment. Instead, it is a minimum standard for claiming authorship in a work. In fact, the legal standard states that a work must show a “modicum of creativity” for copyright rights to attach to the work.
Because of this low threshold for originality, the Copyright Office does not reject most works for registration on that basis. For instance, no registration specialist is going to read your screenplay and decide it’s a story that’s “been done too many times” and then reject it. By contrast, a visual artwork that consists of nothing more than a circle in the middle of a square (or a banana duct-taped to a wall!) can be expected not to reach the originality threshold.
What Type of Work?
If this sounds like originality considerations vary depending on the type of work, they do. For instance, with a graphic design that contains a word or two, the words’ meaning, no matter how clever, will not be considered; only the design elements in the visual work will matter in assessing its copyrightability. Another field that often entails the most difficult questions is applied art. When an object has both a functional purpose and creative elements, the Copyright Office will consider only the creative elements independent of the utilitarian function of the item.
Think of a glass-blown vase and whether it can legitimately be considered a sculpture separate from its function as a vase. The functional elements will be discounted by the Copyright Office. Similarly, designs intended to be used for fashion or wardrobe—e.g., textile patterns that can be registered as visual works—may be protected, but these elements are viewed separately from their assembly into useful clothing. Thus, a whole dress, with its necessary elements of neckline, waist, length, etc. forms a useful article, which will not be protected.
Although there are very few hard rules about originality, one that comes up a lot is titles. The Copyright Office has a categorical rule that titles, individual words, and short phrases are not copyrightable. So yes, you could write a book and give it the title, Harry Potter and the Order of the Phoenix without infringing copyright. But you better make sure it’s about a cab driver in Arizona or some other subject matter very different from a boy wizard!
Overall, rejection of registration for lack of originality is not very common. At the same time, the Copyright Office does not often reverse these decisions, and requests for consideration cost additional fees. If you have doubts about whether a particular work would be considered original, seek the advice of an experienced copyright attorney, including the legal services offered by any organization to which you may belong.