[5][8] In law, originality has become an important legal concept with respect to intellectual property, where creativity and invention have manifest as protectable or copyrightable works.
In United Kingdom intellectual property law, a derived work can demonstrate originality, and must do so if it is to respect copyright.
[citation needed] In the copyright law of the United States, more specifically under 17 U.S.C 102, the work that is sought to be protected must satisfy the threshold for originality.
In the United States, originality necessitates bare minimum degree of creativity and independent creation.
[12] The Supreme Court of the United States in the case of Feist Publications v. Rural Telephone Service Co.[13] held that the work must be independently created and must possess minimum degree of creativity.
After the doctrine was rejected by the Supreme Court in 1991, in the Bridgeman Art Library v. Corel Corp[15] case, the court held that the copies of public domain photographs could not be copyrighted since they lacked originality and while such reproductions may have involved skill and labour, no protection could be granted to them, on account of lack of originality.
The requirement for originality was incorporated in the statute only in the Copyright Act, 1976 and over the course of time, the courts have evolved various metrics to apply the test.
Furthermore, in the landmark ruling, the court observed that it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.
However, scholars note that the principle of aesthetic neutrality is often violated as the adjudicators end up favouring creators of what they believe is deserving of copyright grant.
The most prominent case with respect to 'originality' under the Indian Copyright Law is the Eastern Book Company v DCB Modak.
This theory bases the grant of copyright protection on the effort and labour that an author puts into their work as opposed to the creativity involved.
In the case of V. Govindan v E.M. Gopalakrishna Kone,[23] it was held that compilations of information would meet the threshold of 'originality' under the Indian Copyright Act since it involves some level of 'skill, labour and brain'.
[24] A similar line of reasoning was adopted in the case of Burlington Home Shipping Pvt Ltd v Rajnish Chibber[25] where a database was held to be original enough to be protected by copyright under Indian law.
However, like in other jurisdictions, this theory was discarded by the Indian Courts also and the focus was shifted to the creativity involved in any work.
While explicitly discarding the Sweat of the Brow theory, the Court held that simply copy editing would not meet the threshold of originality under copyright law since it would only demonstrate an "amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity would be completely excluded.".
[31] An original painting, photographic negative, analog audio, or video recording, will contain qualities that can be difficult, or under current technology may be impossible to copy in its full integrity.