The Threshold Of Copyright Protection After American Airlines

Law360 (February 26, 2018, 2:17 PM EST) -- In a century-old decision, Justice Oliver Wendell Holmes cautioned: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves the final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”[1] Even under present-day standards, the standard for copyright protection remains very low. To be copyrightable, a work need only be “original,” that is, independently made and creative.[2] “Minimal,” “very slight,” “modest” and “humble” — these are measures of creativity that courts and commentators have deemed sufficient to constitute copyright protection.[3] But how much is not enough?

The U.S. Copyright...

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