Copyrighted Works Must Be Novel and Nonobvious
To anyone who knows IP law, the title of this post looks like either ignorance or craziness. I assure you, it’s not ignorance. Everyone knows that one of the distinguishing features between copyrights and patents is that patents require novelty and nonobviousness, and copyrights don’t. All you need to get a copyright is to have an “original” work of authorship — and “originality” is an extremely low threshold. It doesn’t require that the content be new, and it certainly doesn’t require that it be nonobvious; it only requires that it be yours (that is, “original” to you).
That’s the theory, but I don’t think that’s the practice. I was struck by this thought (ow!) over the weekend as I was reading materials on substantial similarity and the idea-expression distinction. (Perhaps this thought occurs to all copyright lawyers at some point; maybe it’s just my week.) There are certain famous passages that get intoned by copyright scholars and practitioners to explain such concepts, a bit like the missal in a Catholic mass. Originality is sometimes explained with this reading from the book of Learned Hand:

Law professors, and particularly law school deans, love to complain about the law school rankings done every year by U.S. News & World Report. (Unless their school rises in the rankings, in which case they are an objective measure of merit.) It’s been pretty well demonstrated that, more than a decade into the rankings project, the primary thing the U.S. News rankings measure is how well the school did on previous years’ rankings. In other words, there’s a massive feedback loop going on that is difficult for any one school to break out of. Nevertheless, schools try, because students and even professors, despite their complaints, rely on the rankings to evaluate the worth of various schools.
In November, 1868, the newly freed slaves in South Carolina turned out to vote in the first presidential election they had ever been allowed to participate in. It was a momentous occasion; hundreds of thousands of persons who had been deprived of their rights for centuries were now finally able to enjoy all of the privileges of citizenship, including the right of suffrage. Voting in the 1860s meant travelling long distances to the county seat to cast a ballot, often requiring an overnight stay; it was an arduous process, but they were eager to make the attempt.