“It is better to fail in originality than to succeed in imitation” – Herman Melville.

Whether they do it for love or for money, all creatives want their work to be original. Originality is seen as the yardstick of creative skill and talent. But for the purposes of copyright protection, what is the threshold of creativity that makes a work original?

Whether they are contemplating action against an infringer, or their own work is challenged, it is important that creatives understand the concept of originality.

A distinction needs to be drawn between copying, and using existing work to create something new. The former is infringement; the latter is a derivative work.

Originality begins with the choices you make when creating a work. These choices may be limited by the technical standards or best practices of your discipline, or dictated by the use to which your work is to be put (i.e. an iPod needs to play music). But then there are those creative choices you make, those that apply your signature to the work. It is these creative choices that are protected by copyright.

Take a telephone directory – it is made up of information from the public domain and there is very little scope for arranging that information in a creative way. The creative choices that go into it are very limited. Compare this to the creation of a website. A significant amount of creativity goes into selecting the elements and putting them altogether.

Originality standards are not the same in every country. There may also be different standards for different categories of works within a country (e.g. utilitarian or functional works such as computer programs and databases vs creative works).

However, in practice, it is often the case that the end result is the same across jurisdictions even thought different standards have been applied.

It must always be remembered that while creative works will by definition be ‘original’ and covered by copyright, creativity is not required to make a work ‘original.’

Here are a few questions to ask yourself if you ever get into a bun fight over whether your work is original (or you are taking on someone who has copied you):

1. Did you refer to existing work during the creative or development process?

2. How much did that work influence you (be honest with yourself)?

3. What “creative” choices did you make about the work, which were not based on industry techniques, best practices or the functions to be performed by the work?

(The more intellectually creative you are, the more chance you have of the work being original).

4. How much of your own personality come through in the work?

5. Can you identify elements of the work that could only come from you?

(If not, start trying to develop a distinctive stamp you can put on your work)

6. Don’t be guided by the puddle of blood, sweat and tears – copying can also be hard work sometimes.

7. If there was very little scope for you to arranging the different elements of the work because of the nature of your discipline, the choices you made when arranging those elements will be scrutinized more closely.

(So document as far as possible how you went about selecting and/or organizing the elements)

8. Do you need to be factually accurate when creating the work?

(If so, the scope for creativity may diminish)

9. Is the general public going to be interested in the work you have created? Is it different to other similar types of work (e.g. maps, diaries)?

It is not easy to be absolutely novel and unique these days. But the good news is that copyright law doesn’t expect you to be before it protects you.