nimmer

The Second Circuit, adopting the Nimmers's suggestion, appended "a minimal element of creativity over and above the requirement of independent effort" to a definition of originality that required the work to be, simply, "the original product of the claimant." (72) Batlin required a "substantial variation" to render a reproduction sufficiently original and held that such variation was not present in the bank.

Nimmer and David Nimmer, have written that a lack of originality dooms the copyrightability of a photograph when "a photograph of a photograph or other printed matter is made that amounts to nothing more than a slavish copying." (59) And both Second Circuit and Supreme Court precedent say much the same thing: in L.

(59) 1 NIMMER, supra note 33, [section] 2.08[E] [2], at 2-131 (citation omitted).

The Nimmers' criticism has deterred other courts from finding an infringement based on the "total concept and feel" of two works.

(136) Still, Nimmer and Nimmer criticize this test for its inapplicability to more complex works, like computer code:

See 1 NIMMER & NIMMER, supra note 25, OV-1 to -10.

NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT [section] 1.01[A] (2006) [hereinafter NIMMER ON COPYRIGHT] (discussing state copyright powers).

(31.) 3-10 NIMMER ON COPYRIGHT, supra note 29, at [section] 10.02[A] (implying government considers licensee of any exclusive right owner of that right).

Professors Melvin and David Nimmer, for example, have questioned how often these sorts of evidentiary puzzles are likely to occur in practice.

NIMMER, THE LAW OF COPYRIGHT [section] 10, at 32 (1975)).

Professor Melville Nimmer is perhaps the leading advocate for the first of these approaches.

According to Nimmer and Nimmer, the idea-expression distinction is `more appropriately analyzed' (99) in relation to infringement and the question of substantiality than in relation to the subsistence of copyright, and the distinction `constitutes not so much a limitation on the copyrightability of works, as it is a measure of the degree of similarity which must exist between a copyrightable work and an unauthorised copy'.