Threshold of originality
||The examples and perspective in this article deal primarily with Western culture and do not represent a worldwide view of the subject. (October 2011)|
The threshold of originality is a concept in copyright law that is used to assess whether 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, as in patent protection).
While works that do not meet these thresholds are not eligible for copyright protection, they may still be eligible for protection through other intellectual property laws, such as trademarks or design patents (particularly in the case of logos).
- 1 Originality in specific types of works
- 2 Examples by country
- 3 The "sweat of the brow" doctrine
- 4 References
- 5 Further reading
- 6 External links
Originality in specific types of works
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 whether 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.
Mechanically produced works
In works produced in a mechanical medium, “there is broad scope for copyright . . . because ‘a very modest expression of personality will constitute originality.’” With respect to United States law, Stephen M. McJohn writes:
The limitation of copyright to "works of authorship" also implies an author. This appears to mean that a human created the work, using the requisite creativity. In a work made through a completely mechanical process, copyright might be denied on the basis that no one was the "author".
Difficulties arise when attempting to determine the boundary line between mechanical or random processes and instances in which the slight intervention of a human agent results in the production of a copyrightable work. The Congressional Office of Technology Assessment posited that the question is open as to whether computers are unlike other tools of creation in that they are possible of being co-creators. The U.S. Copyright Office has taken the position that "in order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable."
Pre-positioned recording devices
Security cameras, webcams, camera traps and other pre-positioned recording devices capture whatever happens to take place in their field of view. This raises the question whether their recordings are an original and therefore copyrighted work. For example, "[i]f a security camera mounted in a lobby, recording 24 hours a day, captured a dramatic event, the video could be uncopyrighted."
To date, this question remains untested in the United States. One 2008 United States district court case, Southwest Casino and Hotel Corp. vs Flyingman would have been on point had the case ever been heard. The casino filed suit for copyright infringement on the use of their surveillance video. The defendant argued in a motion that the surveillance video lacked the sufficient creativity needed to secure copyright protection. That argument never got its day in court; instead, the case fell apart when a separate tribal court ruled that the tribes owned the footage – not the casino.
Under New Zealand law, according to Susy Frankel:
A plaintiff could argue that the placing of the video camera and possibly even its operation involved skill, judgment and labour. These are the hallmarks of the test of originality for the subsistence of copyright. The counterargument would be that these skills alone are not enough because if they were it would allow a very low threshold of originality.
Frankel concludes that, under New Zealand law, "a security camera film may not reach the requisite originality threshold, but each case must be assessed on its facts."
In England, the topic came up in 2000, during the aftermath of the death of Diana, Princess of Wales and Dodi Fayed, when a security guard at a property owned by Dodi's father, Mohamed Al Fayed, took still-frame photographs from security video – which showed the couple in the driveway just before their deaths – and sold them to a newspaper. Al Fayed and his privately held security company filed suit, alleging, among other things, infringement of copyright. In that case, Hyde Park Residence Ltd v. Yelland before the Court of Appeal of England and Wales, "ownership and subsistence of copyright were not in dispute", because, "as section 1 of the 1988 Act makes clear, copyright is a property right" which was owned by the security company. Ultimately, that case concluded that stealing and selling the photographs did not lead to a defense of fair dealing (called fair use in the U.S.), nor did it serve the public interest.
In Canada, author David Vaver criticized the decision of the above court, expressing the opinion that "whether scenes taken by an automatic surveillance camera are authored by anyone is doubtful: the person responsible for positioning the camera is no Atom Egoyan. Such authorless films may have no copyright at all".
In the law of continental European countries, according to Pascal Kamina, there is "little doubt that 'works' such as security camera videos would not satisfy" the requirement of originality. Russian copyright law specifically exempts purely informational reports on events and facts from protection, and security camera footage is not considered a work of authorship. This interpretation was applied in a number of Russian legal cases.
A similar topic came up in 2011, when a representative of the Caters News Agency asked the website Techdirt to take down a photo that it had licensed from nature photographer David Slater. The image—a self-portrait taken by a wild monkey using Slater's camera, had been used to illustrate a post questioning whether Slater could even hold any copyright interest in the image. Slater argued that he had copyright interest in the photo because he had "engineered" the shot, and that "it was artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken." Aurelia J. Schultz disputed Slater's claims, noting a monkey would be incapable of holding a copyright in Indonesia (where the photo was taken), the United Kingdom, or the United States, because it is not a legal "person".
Examples by country
Under Canadian copyright law, an eligible work must be original to its author, not copied from another work, and requires more than trivial or mechanical intellectual effort. In the case of CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada examined the different approaches taken to the definition of originality. The Supreme Court ultimately concluded that the proper approach in Canadian law fell between the approach of labour and diligence, and that of creativity. Chief Justice McLachlin stated that the "exercise of skill and judgment" was necessary in order for an expression to attract copyright protection. Chief Justice McLachlin went on to state that the exercise of skill and judgement would require "intellectual effort" and "must not be so trivial that it could be characterized as a purely mechanical exercise." It has been suggested that this approach taken by the Supreme Court of Canada is functionally the same as the approach taken by the Supreme Court of the United States in Feist Publications v. Rural Telephone Service, and by some civil law courts as those courts require that a work demonstrate evidence of creativity in decision making rather than a mechanical exercise in order to be original.
In German copyright law, the "Schöpfungshöhe" (height of creation) could 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") was low, the requirements for design, works that have a "purpose" (such as brand identification), was set much higher, as "novel" designs could be protected by the lex specialis law for design patents ("Geschmacksmustergesetz") or by trademark laws. Only design creations that were very high above the average were considered to be "works of applied art" and so granted copyright. As an example in case law, the logo of the German public broadcaster ARD, was considered ineligible for protection under German copyright law.
In November 2013, a federal court rejected the concept of a lower standard for applied artworks in the Geburtstagszug case. The court ruled that per changes made to German law in 2004 by the implementation of the Directive on the legal protection of designs, copyright and design right were two separate concepts that could co-exist in applied art, as they had different requirements; novelty and an "individual character" for design right, and "a degree of creativity which allows, from the view of a public open to art and sufficiently skilled in ideas of art, to be called an 'artistic' performance", for copyright. This makes the threshold nearly identical to that in other forms of works. The case centred around the creator of the "Birthday Train", who had received royalties from a design patent but wanted to also collect royalties on the concept as a copyrighted work.
In Japanese copyright law, a work is considered eligible for protection when it is "a production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain."
Copyright law of Switzerland defines works as being "creations of the mind, literary or artistic, that have an individual character."  In a 2003 decision, the Federal Supreme Court of Switzerland ruled that a photo of Bob Marley taken at a concert by a spectator with a handheld camera was eligible for protection, because it had the required individual character by virtue of the aesthetic appeal of the picture, combined with the orientation of the picture's components and the distribution of light and shadow. It also found that the photograph was a "creation of the mind" by being shot at a specific time during the singer's movement on the stage.
By contrast, in 2004, the Court found that a photo shot by a reporter to document Christoph Meili with the files he had taken from his employer lacked individual character. It found that the scope of conceptual and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use.
In United States copyright law, the principle of requiring originality for copyright protection 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" that possess "at least some minimal degree of creativity". As such, mere labor ("sweat of the brow") is not sufficient to establish a copyright claim. 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), but sufficiently original elements within the work itself can still be eligible for protection.
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".
Another court case related to threshold of originality was the 2008 case Meshwerks v. Toyota Motor Sales U.S.A. In this case, the court ruled that wire-frame computer models of Toyota vehicles were not entitled to additional copyright protection since the purpose of the models was to faithfully represent the original objects without any creative additions.
The "sweat of the brow" doctrine
Some countries 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."
The sweat of the brow doctrine has been recognized at various times in the United Kingdom, Canada, Australia, and elsewhere. The 1900 UK 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.
Courts in the United States rejected this notion in Feist Publications v. Rural Telephone Service (1991) and Bridgeman Art Library v. Corel Corp. (1999). In these cases, the courts asserted that originality was required for copyright protection. Since the Feist decision, many common law countries have moved towards applying a similar standard. A similar precedent was set in Canada by cases such as Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997), where the court concluded that compilations of data must embody originality and creativity in order to be copyrighted. In March 2012, the European Court of Justice also set a similar precedent, ruling that Football DataCo could not claim copyright on association football match schedules due to the skill and labour used in their creation, as their compilation is "dictated by rules or constraints which leave no room for creative freedom." In November 2015, also citing the European Court of Justice, the United Kingdom's Intellectual Property Office clarified that it was "unlikely" that a digitised reproduction of a work out of copyright would be original enough to attain a new copyright.
- Definitions taken from Webster's new universal unabridged dictionary, ISBN 0-88029-005-6.
- Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
- McJohn, Stephen M. (2006). Copyright: examples and explanations. Aspen Publishers Online. p. 20. ISBN 978-0-7355-5287-6.
- U.S. Congress, Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information, OTA-CIT-302 72 (Washington, DC: U.S. Government Printing office, April 1986).
- Acosta, Raquel (17 February 2012). "Artificial Intelligence and Authorship Rights". JOLTdigest.com. Retrieved 6 February 2013.
- See Compendium II of Copyright Office Practices § 503.03(a) (1984)
- Southwest Casino and Hotel Corp. v. Flyingman, Case Number CIV-07-949-C Memorandum and Order (W.D. Okla., Oct. 27, 2008). Retrieved 21 April 2013.
- Southwest Casino and Hotel Corp. v. Flyingman, Case Number CIV-07-949-C Defense Motion for Summary Judgement (W.D. Okla., Aug. 28, 2008). Retrieved 21 April 2013.
- Frankel, Susy (October 2005). "The Copyright and Privacy Nexus" (PDF). Victoria University of Wellington Law Review (36): 518. Retrieved 9 January 2011.
- English Court of Appeal: Hyde Park Residence Ltd v Yelland & Others  EWCA Civ 37 (10 February 2000); URL retrieved 2011-01-11.
- Vaver, David (1997). Intellectual property law: copyright, patents, trade-marks. Irwin Law. pp. 54–55. ISBN 978-1-55221-007-9. As cited in Perry, Mark; Margoni, Thomas. "From Music Tracks to Google Maps: Who Owns Computer Generated Works?". SSRN: 9. SSRN 1647584.
- Vaver, D.: Creating a Fair Intellectual Property System for the 21st Century, p. . F.W. Guest Memorial Lecture: July 19, 2000. Otago Law Review, vol 10(1), 2001. URL retrieved 2011-01-11.
- Kamina, Pascal (2002). Film copyright in the European Union. Cambridge University Press. p. 78. ISBN 978-0-521-77053-8.
- "Civil Code of the Russian Federation (as last amended on December 8, 2011)". WIPO. Retrieved 27 March 2014.
- Ruling of the Ninth apellate arbitration court of 20.04.2011 № 09АП-2257/2011 on case № А40-113912/10-12-720; Decision of the Arbitration court of city of Moscow of 04.02.2011 on case № А40-131349/10-67-236
- Masnick, Mike. "Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos". Techdirt. Retrieved 24 June 2014.
- "Can monkey who took grinning self-portrait claim copyright?". Metro. Retrieved 24 June 2014.
- Masnick, Mike. "Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain". Techdirt. Retrieved 24 June 2014.
- David Vaver, Intellectual Property Law, 2nd Edition, Irwin Law: Toronto, 2011. at pg 100.
- 2004 SCC 13
- Daniel J. Gervais, "Canadian Copyright Law Post-CCH" (2004) 18 Intellectual Property Journal 131 Cite error: Invalid
<ref>tag; name "Gervais" defined multiple times with different content (see the help page).
- Hartwig, Henning. "Germany: conflict between design and copyright law?". World Intellectual Property Review. Retrieved 17 August 2015.
- Schack, Haimo (2007). Urheber- und Urhebervertragsrecht (in German). Mohr Siebeck. p. 118. ISBN 978-3-16-149489-5.
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- "Meshwerks v. Toyota Motor Sales U.S.A. (2008)" (PDF). Retrieved 2013-09-22.
- Aplin, Tanya. "When are compilations original? Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd". Robinson College, Cambridge. Retrieved 2009-02-11.
- Wilson, Bill (1 March 2012). "Football match fixture list copyright claim rejected". BBC News. Retrieved 6 March 2012.
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- Elizabeth F. Judge/Daniel Gervais: Of Silos and Constellations: Comparing Notions of Originality in Copyright Law, in: Cardozo Arts & Entertainment Law Journal, Vol. 27, 2009, pp. 375–408, (PDF version).
- Orit Fischman Afori: The Role of the Non-Functionality Requirement in Design Law, in: Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 20:3, 2010 pp. 847–874, (PDF version).
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- Annabelle Lever (ed.): New Frontiers in the Philosophy of Intellectual Property, Cambridge University Press, 2012, ISBN 1107009316
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- U.S. Copyright Office: Compendium of Office Practices II, section 500. URL last accessed June 26, 2006.