Commons:Threshold of originality

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The logo of Boeing is not considered a "work of authorship" because it only consists of text in a simple typeface, so it is not an object of copyright in respect to US law. However, this logo is still protected by trademark laws.

The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work, or a portion of it, 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).

For further information, see Threshold of originality on Wikipedia

Official decisions

Deutsch: Bilder, bei denen durch einen Gerichtsbeschluss oder eine vergleichbare Instanz festgestellt worden ist, dass sie wegen einer zu niedrigen Gestaltungshöhe keinen urheberrechtlichen Schutz genießen. Siehe Schöpfungshöhe.
English: Images judged ineligible for copyright protection by a court or similar authority. The last section contains selected images that may or may not be eligible for copyright protection.
Español: Imágenes juzgadas no elegibles para la protección de los derechos de autor por un tribunal u otra autoridad similar. La última sección contiene las imágenes seleccionadas que pueden o no pueden ser elegibles para la protección de los derechos de autor.
Français : Images qui, conformément à une décision prononcée par un tribunal ou autre autorité similaire, ne peuvent pas bénéficier d'une protection par le droit d'auteur. La dernière section contient une sélection d'images qui pourraient (ou non) bénéficier d'une protection par le droit d'auteur.
Italiano: Immagini giudicate come non soggette a diritto d'autore da un tribunale o da un'autorità analoga. La sezione in fondo contiene una selezione di immagini che possono o non possono essere considerate sottoposte a diritto d'autore.
System-search.svgSee also: Commons:Image casebook.

United States

These images are ✓OK to upload to Commons, because they are below the threshold of originality required for copyright protection.

  • Bridgeman v Corel: court ruling that 2D reproductions of the original art has no valid claims for new copyrights (case description)

  • NFL abandoned its copyright claims on the fleur-de-lis (news report)

  • Best Western hotels: Consists of letters plus a simple border. None of these is eligible for copyright protection in United States. (authority)

  • DUB magazine: Consists of letters only. None of these is eligible for copyright protection in United States. (authority)

  • Nikken USA Inc. (authority)

  • Bruce Lee core symbol (authority)

  • New York Arrows logo (case report)

  • Car Credit City logo: Copyright office ruled this logo too simple to be protected, but a slightly more complicated version (shown in the linked letter) was accepted for registration (authority)

  • Symbols for "Myst" (authority)

  • Letter S (authority)

  • Registration was cancelled (authority)

  • Registration refused (authority)

  • Ets-Hokin v Skyy Spirits Inc.: Photo is eligible for copyright protection, but not the bottle

  • A plastic version lacked originality (L Batlin & Son v. Snyder)

  • Koosh balls; "inseparable", OddzOn Products, Inc. v. Oman (case report)

  • Map of Arkansas: Addition of shading, colors, labels to a free black and white outline map (case report)

  • Avenue of the Saints logo; registration refused despite compilation copyright claim for arrangement of otherwise unprotectable elements (authority)

  • Geek Squad logo (authority)

  • Subway logo (authority)

  • Discover It logo: the Copyright Office found that the elements, including the shading effect, were insufficiently creative to be copyright-eligible (authority)

  • American Airlines logo (authority)

Despite repeated requests, the U.S. Copyright Office found the Vodafone speechmark (shaded version) ineligible for copyright protection. It can however not be uploaded to Commons because it's a UK logo.

These are X mark.svg Not OK to upload to Commons (unless published under a free license by the copyright holder), because they are above the threshold of originality required for copyright protection.

Civil law countries

Civil law countries require a relatively high minimum level of intellectual creativity which will exclude typical signatures and simple logos from copyright protection.

If you are aware of specific case law or legal advice on this issue in any country, please add an entry below.

Austria

These logos are X mark.svg Not OK:

Brazil

There are some court cases related to threshold of originality in Brazil. According to this study and the court decisions contained in it, the concept of creativity in Brazil is way more strict and exigent than in the United States, and consequently the ToO is considerably higher than the US, which is the general reference in Commons. Examples:

  • ✓OK - Boneco de Preço Miúdo (2011) - Puppets who were a tridimensional and humanized version of this logo were deemed on court to lack enough originality to be protected. The court considered that there was no originality nor unpublished work in the puppets because they represented an already existing symbol (the supermarkets logo), and that there were already previous 3D and humanized versions of that logo. The court does not grant any value nor legal protection to the specific 3D and humanized version of the logo in question, and calls it something like a "stylization servile to a previous idea".
  • ✓OK - Copyright for compilations/ reorganizations of already existing elements has often been rejected on court, hinting that the threshold for what constitutes an "intellectual creation" on this respect is quite high in Brazil. - STJ AI 604.956 - MG (2004/0059338-6), Ministro Carlos Alberto Menezes Direito, 30 de setembro de 2004; also PROCESSO TRT/SP Nº 0001174-81.2012.5.02.0086 (2016).
  • ✓OK - Slogans are generally OK. In rare occasions they may be protected, when there is such a level of creativity as to attain the level of a literary work. Example: "Guerra das Moedas" court case (2013), copyright to the expression was not recognized by the court. The Justiça Federal do RS verdict stated that the language is cultural patrimony of the people, so language expressions can't be protected by law. Similar court decision on the "As Filhas da Mãe" court case (2017).

  • Puppets who were a tridimensional and humanized version of this logo were deemed on court to lack enough originality to be protected.

Chile

The phrase "Estamos bien en el refugio los 33", a message from the Copiapó miners (penned by Jose Ojeda), was copyrighted (source).

China (PRC)

The following example is ✓OK:

  • "Matchstick man" (image) with a black sphere as a head, black lines as torso, limbs and feet is not copyrightable for lacking originality, ruled Beijing Municipal High People's Court (source).
  • Typeface of "飘柔" in 方正倩体 font is not copyrightable, ruled Beijing No.1 Intermediate People's Court (source).

  • A stick figure similar to this image, where the head is represented by a circle and other parts represented by straight lines, is not copyrightable.

  • Typeface of "飘柔" in 方正倩体 font is not copyrightable, ruled Beijing No.1 Intermediate People's Court (source).

The following examples are X mark.svg Not OK:

are copyrighted (Copyright Law of the PR China: "Article 2 Works of Chinese citizens, legal entities or other organizations, whether published or not, shall enjoy copyright in accordance with this Law." ; "Article 3 'Works' mentioned in this Law shall include [...] in the following forms: (4) works of fine art and architecture" ; Regulations for the Implementation: "Article 4 (8) 'works of fine arts' means [...] such as paintings, works of calligraphy and sculptures;")
  • "LY" company logo (archived from the original on 14 June 2018), although arguably relatively simple, has been ruled copyrightable by Trademark Appeal Board of the State Administration of Industry & Commerce, Beijing Intellectual Property Court, and Beijing Municipal High People's Court.
  • Typefaces of characters "笑", "喜", and "城市宝贝" in these two logos are copyrightable, ruled Nanjing Intermediate People's Court. However the character "巴" in the same logo was decided not copyrightable for lacking originality in the same decision. (source, court decision full text: [5][6])

Colombia

Is ✓OK:

  • To be protected as an industrial design must be apparent to the eye. Para ser protegido como diseño industrial debe ser perceptible a la vista [7].
  • Names of newspapers, magazines, radio and television and other media does not give rise to copyright.Los nombres de periódicos, revistas, programas de radio y televisión y de los demás medios de comunicación no dan lugar a derechos de autor
  • The publication is free portrait as it relates to scientific, educational or cultural in general or with facts or events of public interest or have been occurred in public. La publicación del retrato es libre cuando se relaciona con fines científicos, didácticos o culturales en general o con hechos o acontecimientos de interés público o que se hubieren desarrollado en público.
  • Tender is the reproduction, by any means, of a literary or scientific, ordered or obtained by the applicant in a single copy for private use and non-profit work.Es licita la reproducción, por cualquier medio, de una obra literaria o científica, ordenada u obtenida por el interesado en un solo ejemplar para su uso privado y sin fines de lucro.
  • It will be reproduced by means of painting, drawing, photography or cinematography, works which are permanently located on public roads, streets or places and to distribute and publicly communicate such copies or works.Será permitido reproducir por medio de pinturas, dibujos, fotografías o películas cinematográficas, las obras que estén colocadas de modo permanente en vías públicas, calles o plazas y distribuir y comunicar públicamente dichas reproducciones u obras[8].

Denmark

Not protected

  • Three fonts not eligible for copyright protection (Supreme Court 30 June 2006, U2006.2697H). Two other fonts were found eligible for copyright.

  • Sketches of windows and doors not eligible for copyright protection (The Maritime and Commercial Court 8 August 2003 (V-74-01) and 3 February 2004 (V 98/01)).

Protected

A specific chair design (Tripp Trapp) (Supreme Court 306/2009)

Finland

  • Simple photograph with limited copyright period – not a photographic work of art. (TN 2003:6)

  • Differences compared to the CoA of the historic region did not meet threshold of originality (TN 1998:5)

  • Technical drawing from a textbook does not demonstrate creative personal decisions to such a degree, that no one else would arrive at the same end result, when setting out to draw the same subject. (TN 2011:12)

France

Unlike the "creativity" doctrine in the US and Germany, or the "sweat of the brow" doctrine in the UK, French law asserts that a work is copyrightable when it bears the "imprint of the personality of the author."[3] In practice, it depends on the work in question, but this has left the bar quite low for many works where an artistic intent can be shown. For an art exhibition, a man placed the word paradis with gold lettering above the bathroom door of the old dormitory of alcoholics at a psychiatric facility, and termed it artwork; the French courts agreed with him that it was copyrightable based on the aesthetic choices made ("affixing the word 'paradise' in gold with patina effect and a special graphics on dilapidated door, the lock-shaped cross, encased in a crumbling wall with peeling paint"). (Direct link to the work in question)

France has "a slightly higher threshold of originality in general, and particularly so in the context of photographic works".[4]

A decision from Supreme court on October 2011 agreed with appeal court decision saying that a quite artistic picture of two fish on a yellow plate about a traditional Marseille meal (see [9]) could not be protected by French law because of lack of originality. According to this decision, level of originality required by this appeal court is very high. This decision was criticized but French supreme court doesn't control facts but only controls interpretation of the law.

These are X mark.svg Not OK:

Germany

Note: Some of the information in this section may be outdated due to a 2013 German Federal Supreme court ruling on the TOO for applied art; see this English summary for details.

Not protected

German copyright law: see also[5]

Hungary

✓OK

  • stylized text with a common stylized globe icon SZJSZT 17/2012 (does not show the actual image)

X mark.svg Not OK

Iran

en:Intellectual property in Iran

X mark.svg Not OK for most logos. The level of originality required for copyright protection in Iran seems very low.

Are registrable for copyright protection : "(...) pictures, drawings, designs, decorative writings, (...) or any decorative and imaginative work produced in any simple or complex manner "

Italy

Hogan Lovells states in http://limegreenip.hoganlovells.com/article/46/copyrights-copyright-protection-italy : "In summary, the threshold for an industrial design product to enjoy copyright protection is still quite high and even famous industrial design products have been denied such protection by Italian Courts." Probably this applies to logos too.

These files have been kept as simple logos:

But logo of AC Parma was deleted as complex logo. Logo on external site DR

Japan

Logos in the gallery below are ✓OK to upload. Article 2 of Japanese copyright law defines that a work is eligible for copyright 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. [10][11] Japanese courts have decided that to be copyrightable, a text logo needs to have artistic appearance that is worth artistic appreciation. Logos composed merely of geometric shapes and texts are also not copyrightable in general.

  • (DR) Letters are a means of communication, shared by anyone. Copyright protection of fonts is limited only to those that raise artistic appreciation as much as artistic works do. (Tokyo High Court 平成6(ネ)1470) [1]

  • (DR) Although the shape is stylized, the text is in a normal arrangement and keeps its function of being read as a sequence of letters. (Tokyo High Court 昭和55(行ケ)30, Supreme Court 昭和55(行ツ)75) [2]

  • The Court is negative towards recognizing the symbol as a copyrightable work of fine arts, because it is considered merely relatively simple graphic elements. (Tokyo District Court 昭39（ヨ）第5594 [3])

Luxembourg

According to Jean-Luc Putz in Das Luxenburgische Urheberrecht - Eine Einführung the threshold of originality in Luxembourg is not as strict as in UK but not as liberal as in Germany. During the legislation the intent was to orientate at other Benelux states or France.

Netherlands

Simple logos are okay in the Netherlands but not all logos are. Whether something is above the threshold of originality in the Netherlands is defined in the Supreme Court judgment "'Van Dale/Romme'" (HR 04-01-1991, NJ 1991, 608). In this judgment, the Supreme Court (Hoge Raad) ruled that:

“ Bij de beoordeling van het middel moet worden vooropgesteld dat, wil een voortbrengsel kunnen worden beschouwd als een werk van letterkunde, wetenschap of kunst als bedoeld in art. 1 in verbinding met art. 10 Aw, vereist is dat het een eigen, oorspronkelijk karakter heeft en het persoonlijk stempel van de maker draagt. ”

In English:

“ In assessing the ground of cassation it should be noted that, for a product to be considered a work of literature, science or art as meant in article 1 in conjunction with article 10 of the Copyright law (Auteurswet), it is required that it has an own, original character and bears the personal mark of the maker. ”

This was further specified in the Supreme Court judgment ''Endstra-tapes' (NJ 2008, 556):

“ [D]at het voortbrengsel een eigen, oorspronkelijk karakter moet bezitten, houdt, kort gezegd, in dat de vorm niet ontleend mag zijn aan die van een ander werk (vgl. art. 13 Aw). De eis dat het voortbrengsel het persoonlijk stempel van de maker moet dragen betekent dat sprake moet zijn van een vorm die het resultaat is van scheppende menselijke arbeid en dus van creatieve keuzes, en die aldus voortbrengsel is van de menselijke geest. Daarbuiten valt in elk geval al hetgeen een vorm heeft die zo banaal of triviaal is, dat daarachter geen creatieve arbeid van welke aard ook valt te aan te wijzen. ”

In English:

“ The product has to bear an own, original character. In short, this means the shape may not be based on that of another work. (cf. article 13 Aw.) The demand that the product has to bear the personal mark of the maker means that there has to be a shape that is the result of creative human labor and thus creative choices, which therefore is a product of the human mind. In any case, excluded from this is everything that has a shape that is so trivial or banal, that one cannot show any creative labor behind it of any kind whatsoever. ”

Later the Supreme Court determined in judgment 'Stokke/Fikszo' that:

“ Om voor auteursrechtelijke bescherming in aanmerking te komen, is vereist dat het desbetreffende werk een eigen, oorspronkelijk karakter heeft en het persoonlijk stempel van de maker draagt (vgl. HR 30 mei 2008, LJN BC2153, NJ 2008/556 (E)). Het HvJEU heeft de maatstaf aldus geformuleerd dat het moet gaan om "een eigen intellectuele schepping van de auteur van het werk" (HvJEU 16 juli 2009, nr. C-5/08, LJN BJ3749, NJ 2011/288 (Infopaq I)). ”

In English:

“ [For a work] to be eligible for copyright, it is necessary that the work has an own original character and bears the personal mark of the maker (compare HR 30 May 2008, LJN BC2153, NJ 2008/556 (E)). The Court of Justice of the European Union has defined that the work must be: "An own, intellectual creation of the author of the work". CJEU 16 July 2009, nr. C-5/08, LJN BJ3749, NJ 2011/288 (Infopaq I)). ”

Norway

Not protected

Two-minute theatre play

Protected

Peru

The general definition of a "work" in Art. 2.17 of the 1996 law is work: any personal and original intellectual creation.[6]

Simple photographs have a copyright term of 70 years counted from the first of January of the year following that of the taking of the photograph (Art. 144).[6] Simple photographs are those which fail to meet the general definition of a "work".

Portugal

w:File:Juventude Socialista Portugal.png was deleted as it was considered to be above the threshold of originality.

Photographs

In Portugal photographs have been consistently specifically required to have a significant degree of creativity in order to be copyrighted. §164 of the current 2017 copyright law states that "the choice of a photograph's subject and the conditions of its creation must be deemed to be a personal artistic creation by the author before a photograph may qualify for protection".

Cases on court
  • Landscape photograph: Ruled as without originality. In 2009, (2nd instance court) Tribunal da Relação de Lisboa ruled as void of copyright for lack of artistic creativity a landscape photograph the author was claiming copyright on due to his choice of the setting, light and other conditions. It was considered by the court "a vulgar photograph resultant from the mere choice of an object, such as a city council building and part of a group of trees, without a minimum of creativity". See also this article at the Instituto Portugues de Fotografia.
  • Heart reproduction commissioned to a laboratory in order to be presented in an exposition: Ruled as without originality. (2004)
  • Clothing/Fashion: Ruled as without originality. (2017)

Sweden

"A simple general rule is that if it is unlikely that two persons would create, for example, a text identically or similarly, the text is probably sufficiently original to qualify as a protected work. (..) Often, the requirements for copyright protection are considered to be relatively low."[12]

Not protected

  • Technical drawing. According to decision by the Swedish Supreme Court [4]

Protected

Switzerland

Taiwan (Republic of China)

The following example is ✓OK:

  • Simple typeface, see the Sunshow company logo example below.

The following examples are X mark.svg Not OK:

Common law countries

System-search.svgSee also: Commons:When to use the PD-signature tag#Common law countries and #Lower threshold in United Kingdom etc..

Most Common law countries use a "skill and labour" test to determine the minimum level of originality capable of attracting copyright protection, and in some countries such as the UK the required level is extremely low. Without some research into individual laws, it cannot be assumed that a text logo from a Common law country is necessarily allowed on Commons. If there is real doubt about the position a local court would take, then the image must be deleted under the precautionary principle.

If the logo is extremely simple (e.g. in a standard font), it will not be eligible for copyright even in Common law countries.

If you are aware of specific case law or legal advice on this issue in any country, please add an entry below.

Australia

X mark.svg Not OK for most logos. The level of originality required for copyright protection in Australia is very low.

These images are eligible for copyright protection:

Canada

System-search.svgSee also: en:Originality in Canadian copyright law.

✓OK for most logos.

Unlike other common law countries, Canada's threshold of originality veers closer to that of the United States. CCH Canadian Ltd. v. Law Society of Upper Canada explicitly rejected the "sweat of the brow" doctrine for being too low of a standard, but at the same time, stated that the creativity standards for originality were too high:

A creativity standard implies that something must be novel or non-obvious — concepts more properly associated with patent law than copyright law. And for these reasons, I conclude that an “original” work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise."

The same case also stated:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort.

India

India seems to have a similar threshold of originality as the US Courts, called Modicum of Creativity. Older cases may have similar thresholds of originality to the UK Courts called Sweat of the brow but this is no longer applied. See Understanding The Concept Of Originality Under Copy Right Law In India.

Israel

Although Israel historically used a "skill and labour" test similar to that used by the UK, since the 1989 Israeli Supreme Court's ruling in Interlego A/S v. Exin-Lines Bros. SA they have tended fairly close to a US-style requirement equating originality with human creativity (see [18] for a 2007 paper on this shift; or see [19], which notes that "In Israel, the Supreme Court in the Interlego A/S v. Exin-Lines Bros. SA decision adopted the Feist ruling with regards to both the interpretation of the originality requirement and the general rejection of the ‘sweat of the brow’ doctrine and the labour theory as a legitimate interest for establishing a copyright claim.").

New Zealand

The threshold test for originality is not high (New Zealand Govt)

"As the Court of Appeal has stated, the “threshold test for originality is not high”, the determining factor being “whether sufficient time, skill, labour, or judgment has been expended in producing the work”. 67 The Court has also reiterated the axiom, or principle, that copyright is not concerned with the originality of ideas but with the form of their expression.

A work is not original, however, if:

  • a it is, or to the extent that it is, a copy of another work; or
  • b it infringes the copyright in, or to the extent that it infringes the copyright in, another work."

United Kingdom

✓OK Lego bricks (see w:Interlego v Tyco Industries)

X mark.svg Not OK for most logos. The level of originality required for copyright protection in the United Kingdom is very low.

These images are eligible for copyright protection:

Commons decisions

See Category:Threshold of originality related deletion requests

Logos and flags

Architecture

Images which have been kept because of lack of originality or de minimis:

  • Larouvieremarseille.jpg
  • CSG Ariane 4 Launch Site.JPG
  • CSG - BIF.JPG
  • Paris-Parc-des-Princes.jpg
  • Gare du Stade-de-France-St-Denis CRW 0777.jpg
  • Ronchamp Notre dame du Haut 1954.jpg
  • Stade-Gerland-RWC2007.JPG

Note that some of these decisions were controversial.

Photographs

Photographs which have been deemed ineligible for copyright protection:

  • (DR) Photograph of a three-dimensional object (drawer pull) with bevels and cast shadows

Partial copying or cropping of copyrighted works

When a file copies only part of a copyrighted work, that file's copyright status is determined only by what it has copied. If it only copied uncopyrightable elements, then the file is also uncopyrightable. In other words, we judge the copyright status of a file only by what the file itself contains, not by the status of other content the original source contained that was not copied by the file.

  • This image of the front cover of a novel is public domain in the USA because it only copies uncopyrightable text, not copyrightable contents of the book itself or possibly-copyrightable contents of the back cover. (DR) It would probably not be PD in UK because of the UK's publisher's 25 year copyright on typography.

Lower threshold in United Kingdom etc.

References

  1. ↑ Omega S.A., v. Costco Wholesale Corp., 541 F.3d 982, 983.
  2. ↑ Fishman, Stephen () The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More, Nolo, p. 183 Retrieved on . ISBN: 1413320287.
  3. ↑ http://m2bde.u-paris10.fr/content/le-concept-d%E2%80%99originalit%C3%A9-dans-la-l%C3%A9gislation-fran%C3%A7aise-du-droit-d%E2%80%99auteur-et-dans-celle-du-co
  4. ↑ Mathilde Pavis (University of Exeter), 2015.
  5. ↑ Schack, Haimo (in german) Urheber- und Urhebervertragsrecht, pp. 118
  6. ↑ a b Peruvian copyright law of April 23, 1996

See also

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