| dc.description.abstract | Although the U.S. Supreme Court has famously spoken of a "historic kinship" between patent and copyright doctrine, the family resemblance is sometimes hard to see. One of the biggest differences between them today is how much ingenuity they require for earning protection. Obtaining a patent requires an invention so innovative that it would not have been obvious to a person having ordinary skill in the art. Copyright, by contrast, makes no such demand on authors. It requires an original work of only minimal creativity.
Except sometimes it doesn't. Puzzlingly, in some copyright cases dealing with musical arrangements, courts have demanded a patent-like level of creativity from putative authors. While these cases might seem like outliers, they have a pedigree that is both lengthy and largely unrecognized. The proposition that copyright originality should require patent-style inventiveness beyond artisans' everyday creations dates back to an 1850 music-infringement decision by Justice Samuel Nelson. In fact, only four months later, Nelson himself would author the Supreme Court patent opinion that is now credited as the touchstone for patent law's own nonobviousness doctrine. His corresponding vision for copyright, though, came first. | en_US |
