Tabberone is pronounced tab ber won not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me! "The only thing necessary for the triumph of evil is for good men to do nothing" Edmund Burke

This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976)

What the leading authority has called "the one pervading element prerequisite [*490] to copyright protection regardless of the form of the work" is the requirement of originality -- that the work be the original product of the claimant. 1 M. Nimmer, The Law of Copyright § 10, at 32 (1975). This derives from the fact that, constitutionally, copyright protection may be claimed only by "authors." U.S. Const., art. I, § 8; Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 28 L. Ed. 349, 4 S. Ct. 279 (1884). Thus, "one who has slavishly or mechanically copied from others may not claim to be an author." 1 M. Nimmer, supra, § 6, at 10.2. Since the constitutional requirement must be read into the Copyright Act, 17 U.S.C. § 1 et seq., the requirement of originality is also a statutory one. Chamberlin v. Uris Sales Corp., 150 F.2d 512 (2d Cir. 1945). It has been the law of this circuit for at least 30 years that in order to obtain a copyright upon a reproduction of a work of art under 17 U.S.C. § 5(h) that the work "contain some substantial, not merely trivial originality . . . ." Chamberlin v. Uris Sales Corp., supra, 150 F.2d at 513. Originality is, however, distinguished from novelty; there must be independent creation, but it need not be invention in the sense of striking uniqueness, ingeniousness, or novelty, since the Constitution differentiates "authors" and their "writings" from "inventors" and their "discoveries." Alfred Bell & Co. v. Catalda Fine Arts, Inc., supra, 191 F.2d at 100; Runge v. Lee, 441 F.2d 579, 581 (9th Cir.), cert. denied, 404 U.S. 887, 30 L. Ed. 2d 169, 92 S. Ct. 197 (1971). Originality means that the work owes its creation to the author and this in turn means that the work must not consist of actual copying. Alfred Bell & Co. v. Catalda Fine Arts, Inc., supra, 191 F.2d at 102-03; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), aff'd, 309 U.S.(1940). The test of originality is concededly one with a low threshold in that "all that is needed . . . is that the 'author' contributed something more than a 'merely trivial' variation, something recognizably 'his own.'" Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d at 103. But as this court said many years ago, "while a copy of something in the public domain will not, if it be merely a copy, support a copyright, a distinguishable variation will . . . ." Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F.2d 159, 161 (2d Cir. 1927).