Tiered Originality and the Dualism of Copyright Incentives

Volume 95

95 Va. L. Rev. Online 67
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In a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals. To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us why some of copyright’s more recent innovations are not the right place to give effect to their ideas and principles. In this Response, I examine how their refashioned originality doctrine might fit within copyright’s incentive structure, and in the process ask whether there might be better ways of integrating it into the institution’s existing common law structure.

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