Protecting Menard’s Quixote: A Return to the Strict Originality Standard in Copyright Law


Copyright protection extends to “original” works. The adjective “original” here means a work that originated with its purported author, and is not meant to impute any novelty requirement to copyright law. However, case law and literature offer up several odd examples where two individuals have independently created identical works of art. The theory underlying copyright law requires that, because each work originated independently from separate authors, each work be independently copyrightable. Applying this strict, objective standard of originality to the transformative arts, we begin to see new possibilities for grounding copyrights in parodies and satires. Under current law, parodies escape infringement of their target works through the “fair use” exception to copyright law, while satires frequently do not. However, this essay argues that, under a strict interpretation of the originality standard, parodies and satires alike can be considered independently created works of art that are not derivative of (and hence not infringing) their target works. This essay suggests the application of a new standard of ascertainably different meanings when determining whether one work infringes upon a similar work.


Intellectual Property Law

Date of this Version

June 2006