10 January 2006


One of the core requirements in copyright law (or, at least, US copyright law, and increasingly in the purely copyright law elsewhere—sui generis database protection notwithstanding) is "originality." The necessary quantum of originality is extremely low. Dealing with databases makes this question rather clear; as the Supreme Court held a decade and a half ago,

[T]he originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity. Presumably, the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.Such works are incapable of sustaining a valid copyright.

Even if a work qualifies as a copyrightable compilation, it receives only limited protection. This is the point of § 103 of the Act. Section 103 explains that "[t]he subject matter of copyright … includes compilations," but that copyright protects only the author's original contributions — not the facts or information conveyed…. As § 103 makes clear, copyright is not a tool by which a compilation author may keep others from using the facts or data he or she has collected…. The 1909 Act did not require, as "sweat of the brow" courts mistakenly assumed, that each subsequent compiler must start from scratch, and is precluded from relying on research undertaken by another. Rather, the facts contained in existing works may be freely copied, because copyright protects only the elements that owe their origin to the compiler — the selection, coordination, and arrangement of facts.1

The interesting copyright question, though, is implied by the problems that many museums are currently having with cultural artifacts.

Today, visitors to Machu Picchu see well-preserved ruins hidden among the majestic Andes: complete with palaces, baths, temples, tombs, sundials, and agricultural terraces, and also llamas roaming among hundreds of gray granite houses. But they won't find too many bowls, tools, ritual objects, or other artifacts used by the Incas of the late 1400s. To see those, they have to travel to New Haven, Conn[ecticut]. Yale historian Hiram Bingham rediscovered Machu Picchu in 1911, and, backed by the National Geographic Society, returned with large expeditions in 1912 and 1915, each time carting out — with supposed special permission from Peruvian President Augusto B. Leguña — crates filled with archeological finds. But now, Peru is threatening to sue the Ivy League school, claiming the permission was either given illegally or misunderstood. The "treasures of Machu Picchu," states David Ugarte, regional director of Peru's National Culture Institute (INC), were given to the American explorer "on loan."

Danna Harman, "90 Years Later, Peru Battles Yale Over Incan Artifacts," CSM (29 Dec 2005) (fake paragraphing removed for clarity). This should bring to mind a little bit of the South Africa/Disney controversy, and in the broader sense other possessory transformations of culture. Consider, for example, Disney's Sleeping Beauty. The film is based—at least in part, before all the singing—upon the Northwest European folktale versions, leaving out the most salacious (and bloody) parts. In each instance, the particular source tellings were long out of copyright when Disney began work on its version. That, however, leads to several questions:

  • What right does Disney have to exclude others from reusing the same source material? And how much?
  • What right might either Disney or a third party have to reuse source material of the same tale, but from other cultures (the Russian version of Sleeping Beauty is particularly chilling)?
  • And, most interestingly: What claim might the descendants of the source cultures have upon the retellings?

That third question is the hard one. A hypothetical instance other than Sleeping Beauty might make it clearer. Consider a wildly successful film based upon a unique, centuries-old African tribal tale. The film is as literal a translation as one can imagine—with the single exception that, because it is a film at all, it violates cultural precepts concerning the "stealing of the soul" through photography. Copyright law would vest copyright in the film's producers.2 However, must the producers somehow share their creation with the the tribal descendants? Is there an appropriation here sufficient to make this particular example more like the museum controversies than just another remake of the legend of Alexander the Great? Are these rhetorical questions ever going to end?

  1. Feist Publ., Inc. v. Rural Tel. Serv., Inc., 499 U.S. 340, 358–59 (1991) (citations omitted).
  2. Whether this is actually consistent with the "originality" requirement for copyright or not, it's what the law presently does under the work-for-hire definition in § 101.