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The Soul of CreativityForging a Moral Rights Law for the United States$
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Roberta Rosenthal Kwall

Print publication date: 2009

Print ISBN-13: 9780804756433

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804756433.001.0001

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Marginally Original and Functional Works of Authorship

Marginally Original and Functional Works of Authorship

Chapter:
(p.69) Chapter 6 Marginally Original and Functional Works of Authorship
Source:
The Soul of Creativity
Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804756433.003.0006

This chapter considers works whose level of originality, while perhaps sufficient to obtain copyright protection, is nonetheless arguably too low to qualify for the stronger protections for textual integrity addressed in this book. It argues that while certain functional types of works should be excluded per se from moral rights protection, other works such as art, literature, music, and even architecture presumptively should qualify if a sufficient showing of originality can be made with respect to the particular work at issue. For many works, the requisite level of originality likely will not be an issue. For works at the margins, however, courts will have to decide whether a heightened originality standard with substantial creativity has been met. Any originality determination thus will necessitate at least some judicial evaluation of the artistic rank of a given work.

Keywords:   copyright protection, textual integrity, moral rights protection, originality, creativity

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