Compendium of U.S. Copyright Practices, 3rd Edition

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801.4 Copyrightable Authorship in Works of the Performing Arts


801.4 Copyrightable Authorship in Works of the Performing Arts


“To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possesses “at least some minimal degree of creativity.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991).


The term “independent creation” means that the author created the work without copying from other works. See id. at 345. The copyright law protects “those components of a work that are original to the author,” but “originality” does not require “novelty.” Id. at 348. A work may satisfy the independent creation requirement “even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” Id. at 345.


In addition, a work of the performing arts must have at least a “modicum of creativity” to be copyrightable. Id. at 346. This means that the fruits of creative thought originating from the author must be evident in the work, and the work must not be simply the result of wholesale copying, discovery, or an uncopyrightable change to a preexisting work.


For more information concerning the originality requirement, see Chapter 300, Section 308. For information concerning the originality requirement for specific types of works of the performing arts, see the following Sections:


• Section 802.5: Musical Works.


• Sections 803.5 and 803.6 (B): Sound Recordings.


• Section 804.6: Dramatic Works.


• Section 805.4: Choreographic Works.


• Section 806.4: Pantomimes.


• Section 807.5: Audiovisual Works.


• Section 808.7: Motion Pictures.


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