Whether originality is the proper standard to determine character copyrightability

QUESTIONS PRESENTED 1. Originality is the “touchstone,” the “sine qua non,” and the “premise” of copyright law. An artist may obtain a valid copyright if she meets this “extremely low” bar for creativity through her expression of a_ statutorily eligible work. The Copyright Act defines statutorily eligible works in 17 U.S.C. § 102(a). While § 102(a) does not list literary and animated characters, lower courts have uniformly found characters independently protectable as components of literary or audio-visual works. Yet the Second, Seventh, and Ninth Circuits have all announced different standards to determine when copyright law independently protects characters. None of these standards depends on originality. The first question for this Court is whether originality is the proper standard to determine character copyrightability, and, if not, what the proper standard is? 2. The circuit courts are split over whether to decide copyrightability as a question of fact or law. If a question of fact, this Court held in Feltner v. Columbia Pictures Television, Inc., that juries—not judges—decide disputes in copyright cases. 523 U.S. 340 (1998). And the sole question for a Rule 12(b)(6) motion is whether the complaint states enough facts to plead a plausible claim. The second question for this Court is whether a character or any work—is a (ii) question of fact, or involves questions of fact, illsuited for resolution on a Rule 12 motion? (iii)