Threshold of originality
From Wikipedia, the free encyclopedia
The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author" (insofar as it somehow reflects the author's personality), rather than "never having occurred or existed before" (which would amount to the protection of something new, like in patent protection).[1]
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[edit] Examples by country
[edit] United States
In United States copyright law, this principle was invoked in the 1991 ruling of the United States Supreme Court in Feist Publications v. Rural Telephone Service. The court opinion stated that copyright protection could only be granted to "works of authorship" meeting this minimum threshold of originality. As such, mere labor, if not original, was not copyrightable. This legal interpretation was derived from the Copyright Clause of the United States Constitution, which grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This requirement sets a very low bar for originality under U.S. law. For example, the expression of some obvious methods of compilation and computation, such as the Yellow Pages or blank forms, cannot receive a copyright (demonstrated in Morrissey v. Procter & Gamble).[2] However, if such works contain some copyrightable elements — e.g. a paragraph describing the Yellow Pages, or random designs on the blank forms — then those elements can receive copyright protection.
[edit] Typefaces and geometry
House Report No. 94-1476 states that the design of a typeface cannot be protected under U.S. law. The non-eligibility of "textual matter" was raised in Ets-Hokin v. Skyy Spirits Inc., judging if photographs of bottles of SKYY vodka were original enough for protection.
The Skyy vodka bottle, although attractive, has no special design or other features that could exist independently as a work of art. It is essentially a functional bottle without a distinctive shape.Turning next to the bottle's label, which the district court also cited in part in categorizing Ets-Hokin's photos as derivative works, we note that "[a] claim to copyright cannot be registered in a print or label consisting solely of trademark subject matter and lacking copyrightable matter." Although a label's "graphical illustrations" are normally copyrightable, "textual matter" is not--at least not unless the text "aid[s] or augment[s]" an accompanying graphical illustration. The label on Skyy's vodka bottle consists only of text and does not include any pictorial illustrations.
[edit] Reproductions of public domain works
The requirement of originality was also invoked in the 1999 United States District Court case "Bridgeman Art Library v. Corel Corp." In the case, Bridgeman Art Library questioned the Corel Corporation's rights to redistribute their high quality reproductions of old paintings that had already fallen into the public domain due to age, claiming that it infringed on their copyrights. The court ruled that exact or "slavish" reproductions of two-dimensional works such as paintings and photographs that were already in the public domain could not be considered original enough for protection under U.S. law, "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original".[3]
Although the court claimed that their copyright claims would fail even in the United Kingdom where labor and investment in time in the creation of a work can be enough for one to be considered original, whether this applies to reproductions of public domain works is inconclusive.[4]
[edit] Germany
In German copyright law; the "Schöpfungshöhe" (height of creation) can classify copyrightable works into two classes, a design, or anything else (such as a literary work). While the threshold (which is reached even by simple creations, known as "Kleine münze", German for "Small change") is low, the requirements for design, works that have a "purpose" (such as brand identification), are set much higher, as such works can be protected by the lex specialis law for design patents ("Geschmacksmustergesetz") or by trademark laws. Only design creations that are very high above the average are considered as "works of applied art" and so granted copyright. As an example in case law, the logo of the German state broadcaster ARD, is not considered protectable under German copyright law.[5]
[edit] The "sweat of the brow" doctrine
Some countries also grant copyright protection based on how much labour and diligence it took to create a work, rather than or in addition to how original a work is. This is referred to as the "sweat of the brow" doctrine in relation to the idiom, "the sweat of one's brow". Courts of the United States had previously rejected this notion in Feist Publications v. Rural Telephone Service and Bridgeman Art Library v. Corel Corp. The latter case however, stated that Bridgeman Art Library's copyright claims on reproductions of works that had already fallen into the public domain wouldn't be valid in the United Kingdom.[4]
However, the Sweat of the brow doctrine has been recognized in the United Kingdom and even the European Union on several occasions. The 1900 case Walter v. Lane ruled that the copyright of an account of a speech transcribed by a reporter belonged to the newspaper he worked for because of the effort it took to reproduce his spoken words.[6] The European Union also recognizes a sui generis right for databases and compilations, which would make situations such as the ones encountered in Feist vs. Rural be considered infringing.
[edit] References
- ^ Definitions taken from Webster's new universal unabridged dictionary, ISBN 0-88029-005-6.
- ^ Morrissey v. Procter & Gamble Co. (1967)
- ^ Filler, Stephen C. (December 9, 2006, from Internet Archive)). "Copyright Protection and Subject Matter in Photographs". http://web.archive.org/web/20061209234905/http://www.nylawline.com/articlephotog1.htm.
- ^ a b Askanazi, Jennifer et al. (May 22, 2001). The Future of Database Protection in U.S. Copyright Law. Duke University Law and Technology Review. http://www.law.duke.edu/journals/dltr/articles/2001dltr0017.html.
- ^ Schack, Haimo (in German). Urheber- und Urhebervertragsrecht. pp. 118. http://books.google.de/books?id=6i_B3deSB0cC&pg=PA118&lpg=PA118&dq=%22OLG+K%C3%B6ln,+GRUR+1986,+889%22&source=web&ots=WDF7Z2_h3Z&sig=Js29xEg4ONo9lPnmmzZtI6T5WbQ&hl=en&sa=X&oi=book_result&resnum=9&ct=result.
- ^ Aplin, Tanya. "When are compilations original? Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd". Robinson College, Cambridge. http://www.austlii.edu.au/au/journals/DTLJ/2001/1.html. Retrieved 2009-02-11.
[edit] External links
- U.S. Copyright Office: Compendium of Office Practices II, section 500. URL last accessed June 26, 2006.
