This article contends that a definitive account of originality as a legal construct is not possible and that, as a result, the current low threshold for originality should be maintained. Under this analysis, most photographs, so long as they comply with certain requirements, should be granted protection, at the very least, against exact copying (for example, through digital copying and pasting). Arriving at this conclusion, however, requires a return to first principles, that is, to the copyright concepts of authorship and originality. These concepts saw their most recent articulation by the Supreme Court in the 1991 landmark decision of Feist Publications, Inc. v. Rural Telephone Service Co., which held that the white page phone listings before it did not merit copyright protection. The Court determined that originality is a constitutional prerequisite for copyright protection and that it entails a two-pronged showing: (1) "that the work was independently created" (that is, that it was not copied), and (2) that the work manifests "some minimal degree of creativity."" The white page listings failed on the second count; they comprised a factual compilation reflecting insufficient "creative spark."
Since Feist was handed down, a vast body of academic work has focused on how the decision should apply outside its immediate factual predicate to other sorts of works. One group of scholars has focused on the degree to which fact-driven works, such as maps, site plans, and many compilations, should be afforded-post-Feist-the protections of copyright law. For some, there was concern that socially useful works that could be characterized as "too factual" would be produced at suboptimal levels in the face of uncertain protection. A second group of scholars has addressed the ways in which Feist should be applied to works closer to what we might loosely deem "the arts."" As Professor Robert Gorman noted, Feist "does not address—obviously, the Court had no cause to—the question of how the ‘creative spark’ standard is to be applied to works of art, music and literature." A number of the scholars taking up this latter question have expressed the opposite concern from the first group. They have cautioned that too many nominally creative works are granted the exclusivity rights of copyright and that these sorts of works ought to undergo more robust scrutiny on originality grounds.
Situating photography on the fact-art continuum suggested by Feist, and theorizing whether the opinion might lead to an under- or oversupply of works in this medium, is not readily accomplished. Photography has always walked a fine line between "merely" reflecting reality and reflecting artistic imprint. "Daguerreotypemania," for example, captured public attention through its ability to provide portraiture at a level of exacting detail beyond anything previously imaginable. At the same time, many of the first photographers were former painters whose richly stylized work was seen as reflecting artistic sensibilities. Even the Supreme Court's seminal photography decision of 1884, Burrow-Giles Lithographic Co. v. Sarony, potentially set up a dichotomy between "graceful" photographs, which would be protected under copyright, and those in which "accuracy" was the "highest merit," which might not be. A tension is also apparent in today's world, where precise digital imaging is relied upon to perform surgery safely. At the same time, modern digital photography clearly has opened up many new avenues for creativity. Indeed, some commentators argue that it is digital photography's extreme susceptibility to creative manipulation, rather than its reflection of reality, that will come to be its hallmark.
This article proceeds in three Parts. In Part I, it discusses the originality standards that furnish the basis for judicial assessments of originality today. This Part traces the origins of the proxy approach to originality. In Part II, the article sets forth the contemporary legal settings in which questions about originality in photography typically arise—copyright infringement suits over commercial photographs. This Part develops the three proxies which function as methods for making originality determinations. Finally, Part III draws upon the standards and cases discussed in the foregoing Parts to draw conclusions and raise questions about how the originality doctrine should be applied to photography and other "artistic" works. Diverging from recent proposals in the scholarly literature, the article argues against a heightened burden of proof for originality in works of authorship.