Threshold of originality

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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). [1]


Copyright finds its international commonality in the Berne Convention that creates the foundation of several concepts of international copyright law; however, the threshold for attracting copyright is not defined. This threshold is up to each jurisdiction to determine. 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).

Originality in specific types of works

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." [2]

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. [3] 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. [4] That argument never got its day in court; instead, the case fell apart when a separate tribal court ruled that the tribes, rather than the casino, owned the footage. [3]

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. [5]

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."[ citation needed ]

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, [6] "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 copying and selling the photographs did not lead to a defence of fair dealing, nor did it serve the public interest. [6]

In Canada, author David Vaver has expressed the view 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". [7]

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. [8] 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. [9] [10]

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". [11] [12] [13] In December 2014, the United States Copyright Office issued an opinion backing the argument, stating that works by animals cannot be copyrighted, because they were not a work of authorship by a human. [14] [15] Nonetheless, the animal rights group PETA sued Slater on behalf of the monkey under the next friend principle. [16] [17]

Uses of the concept of originality by country


The Australian Aboriginal Flag was copyrighted in Australia until the copyright of the flag was transferred to the Commonwealth on 25 January 2022. Australian Aboriginal Flag.svg
The Australian Aboriginal Flag was copyrighted in Australia until the copyright of the flag was transferred to the Commonwealth on 25 January 2022.

Despite consisting only of two fields and a circle at the centre, the Federal Court of Australia had upheld copyright claims over the Australian Aboriginal Flag by its designer, Harold Thomas. [18] On 24 January 2022, the Commonwealth government announced, after more than three years of confidential negotiations, [19] Thomas had transferred the copyright to the flag to the Commonwealth. [20] The federal government paid AUS$20.05 million to Thomas and licence holders (including WAM Clothing and Carroll and Richardson Flagworld) to extinguish existing licences and secure copyright. As part of the copyright transfer, Thomas retained moral rights over the flag (which include the right to be identified as its creator). Following the copyright transfer, Carroll and Richardson Flagworld continued to be the exclusive manufacturer, although individuals may make copies for personal use. [20] [21] [22]


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. [23] 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. [24] 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, Inc., v. Rural Telephone Service Co. , and by some civil law courts as those courts require that a work demonstrate a "modicum of creativity" in decision making rather than a mechanical exercise in order to be original. [25]

European Union

The test for the threshold of originality is in the European Union whether the work is the author's own intellectual creation. This threshold for originality is harmonised within the European Union by the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening case. [26]


German case law considered the logo of ARD to be ineligible for protection under German copyright law. ARD logo.svg
German case law considered the logo of ARD to be ineligible for protection under German copyright law.

In German copyright law, the "Schöpfungshöhe" (literally: 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 coin") 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. [27] 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. [28]

In November 2013, the Federal Court of Justice 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. [27] 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. [29] [30]

In June 2016, a state court ruled in a complaint against the Wikimedia Foundation by the Reiss Engelhorn Museum, that digital reproductions of public domain works are subject to a new copyright. [31]


A controversial decision on 16 July 2013 rendered "backseat conversations"—such as those between Willem Endstra and police—not sufficiently creative for copyright protection. [32]


Section 13(1)(a) of the Copyright Act, 1957 (which is largely derived from the British Copyright Act 1956) states that copyright subsists in "original literary, dramatic, musical and artistic works".

Courts initially favoured a doctrine of originality being based upon the "skill, labour and brain" used in the preparation of the work. This was demonstrated in the cases of V. Govindan v E.M. Gopalakrishna Kone and Burlington Home Shipping Pvt Ltd v Rajnish Chibber, which held that compilations (an English-Tamil dictionary) and databases (an internal customer database that had been obtained by a former employee and brought to their competitor) were eligible for copyright. [33] [34] [35]

However, the Supreme Court would reject this doctrine in the 2007 case Eastern Book Company & Ors vs D.B. Modak & Anr; Eastern Book Company had published copy-edited versions of Supreme Court judgments with numbered paragraphs, cross-references, and headnotes that were written by the Company itself. The respondents had published CD-ROMs containing compilations of these judgements, which Eastern Book Company alleged were sourced from its publications; the CD-ROMs contained the copy-edited texts of the judgements themselves, but did not contain the headnotes and original content that were written by Eastern Book Company. [36]

Citing the Canadian case of CCH Canadian Ltd. v. Law Society of Upper Canada, and U.S. case law such as Feist Publications, Inc., v. Rural Telephone Service Co. , the Court established that judgements or court orders by published by judicial authorities were considered to be in the public domain per Section 52(1)(q) of the Copyright Act, and that a work would meet the originality standard as long as there is labour or effort involved, but not only labour. [36] The court held that mere copy-editing "lacks originality as it does not depict independent creation even a modicum of creativity. The inputs put by the appellants is nothing but expressing an idea which can be expressed in a limited way and as such there cannot be a copyright. Filling the blanks or gaps by providing names of the parties or citations of the judgments, both of which are well known and unchangeable parts of that idea, are not original work." The court held that the headnotes that did not copy from the judgment verbatim were copyrightable, and that the division of a judgment into paragraphs and numbering them was enough to meet a standard of skill. [36]


Cup Noodles packaging design is not eligible for copyright protection. Cup Noodles.jpg
Cup Noodles packaging design is not eligible for copyright protection.
Logos composed of geometric shapes and texts are uncopyrightable in Japan. For example, the Love Live! franchise logo. Love Live! series logo.svg
Logos composed of geometric shapes and texts are uncopyrightable in Japan. For example, the Love Live! franchise logo.

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." [37]

In a case law, Nissin Foods lost the case for the design of Cup Noodles packaging. Tokyo High Court ruled that although the shape is stylised, the text is in a normal arrangement and keeps its function of being read as a sequence of letters. [38]

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. [39]


A Swiss court considered this photograph of Christoph Meili to lack "individual character". Christoph Meili 1997-nonfree.jpg
A Swiss court considered this photograph of Christoph Meili to lack "individual character".

Copyright law of Switzerland defines works as being "creations of the mind, literary or artistic, that have an individual character." [40] 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. [41]

By contrast, in the 2004 case Blau Guggenheim v. British Broadcasting Corporation, 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. [42]

These decisions were superseded by the insertion of Article 2 paragraph 3bis, effective 1 April 2020. [43] "Photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered works, even if they do not have individual character."[ citation needed ]


In Taiwan, independently created works with "minimal creativity" are eligible for copyright protection. [44]

United States

According to the U.S. Copyright Office, this logo does not contain a sufficient amount of original and creative authorship to be protected by copyright. Best Western logo.svg
According to the U.S. Copyright Office, this logo does not contain a sufficient amount of original and creative authorship to be protected by copyright.
Car Credit City logo: U.S. Copyright office ruled this logo too simple to be protected, but a slightly more complicated version was accepted for registration (authority). CarCreditCity.png
Car Credit City logo: U.S. Copyright office ruled this logo too simple to be protected, but a slightly more complicated version was accepted for registration (authority).
The logo of Sony 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. Sony logo.svg
The logo of Sony 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.

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. [46]

The Supreme Court similarly established in Star Athletica, LLC v. Varsity Brands, Inc. that artistic elements of a practical article (such as clothing) can be copyrighted if they meet the threshold of originality, and can be identified as art when they are mentally separated from the item's practical aspects. [47]


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". [48]

Another court case related to threshold of originality was the 2008 case Meshwerks v. Toyota Motor Sales U.S. 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. [49]

In May 2016, Judge Percy Anderson ruled that remastered versions of musical recordings are eligible to receive a new copyright if they contain "multiple kinds of creative authorship, such as adjustments of equalization, sound editing and channel assignment", that are perceptible from the original work. This applies even if the work was only subject to common law state copyright as a sound recording published prior to 1972, thus making them become eligible for compulsory licenses under federal copyright law. [50] [51] This was overruled in 2018 in a 3–0 ruling by the 9th Circuit Court of Appeals, which held that "A digitally remastered sound recording made as a copy of the original analog sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection." [52]

Typefaces and geometry

SKYY Vodka bottle SkyyVodka750ml.jpg
SKYY Vodka bottle

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:[ citation needed ]

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.'" [53] 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". [2]

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. [54] [55] 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." [56]

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 recognised at various times in the United Kingdom, Canada, Australia, India, 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. [57]

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. [58] 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. [58]

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". [59] In November 2015, 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. [60]

See also

Related Research Articles

A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion that is often called romantic originality. The validity of "originality" as an operational concept has been questioned. For example, there is no clear boundary between "derivative" and "inspired by" or "in the tradition of."

<i>CCH Canadian Ltd v Law Society of Upper Canada</i> Supreme Court of Canada case

CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 is a landmark Supreme Court of Canada case that established the threshold of originality and the bounds of fair dealing in Canadian copyright law. A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

The Copyright Act 1957 as amended governs the subject of copyright law in India. The Act is applicable from 21 January 1958. The history of copyright law in India can be traced back to its colonial era under the British Empire. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957. The most recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012.

The copyright law of Switzerland is based on the concept of "author's rights", which is similar to the French copyright law, instead of the concept of copyright used in common law jurisdictions. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992 and has only seen minor revisions since then. In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty in the act, a process started in 2004 with the release by the Swiss Federal Council of a draft project.

<i>Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd</i>

Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd was a 2001–2002 case in the Federal Court of Australia in which Telstra successfully argued that its copyright had been infringed by the reproduction of data from the White and Yellow Pages telephone directories in CD-ROM format.

<span class="mw-page-title-main">Sweat of the brow</span> Copyright law doctrine

Sweat of the brow is an intellectual property law doctrine that is chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by copyright. In the case appealed, Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed.

<i>Bridgeman Art Library v. Corel Corp.</i> U.S. legal case on copyright originality

Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable under US law is originality.

<span class="mw-page-title-main">Derivative work</span> Concept in copyright law

In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work. The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.

The Copyright Clause describes an enumerated power listed in the United States Constitution.

Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.

The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time limit and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1928, are in the public domain.

Paraphrasing of copyrighted material may, under certain circumstances, constitute copyright infringement. In most countries that have national copyright laws, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. Whether a paraphrase is an infringement of expression, or a permissible restatement of an idea, is not a binary question but a matter of degree. Copyright law in common law countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the idea/expression dichotomy. The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.

<i>Atari Games Corp. v. Oman</i> 1992 court case regarding video game copyright law

Atari Games Corp. v. Oman was a series of court cases where Atari, a video game developer, challenged the United States Copyright Office for refusing copyright registration for their arcade game Breakout. The Register of Copyrights first rejected Atari's registration in 1987, determining that Breakout lacked sufficient creativity to qualify as an audiovisual work. Atari twice appealed the register's decision before their copyright was granted. Decided in 1992, the case affirmed that video games are protected from clone developers who mimic a game's audiovisual aspects.

<span class="mw-page-title-main">Monkey selfie copyright dispute</span>

Between 2011 and 2018, a series of disputes took place about the copyright status of selfies taken by Celebes crested macaques using equipment belonging to the British wildlife photographer David J. Slater. The disputes involved Wikimedia Commons and the blog Techdirt, which have hosted the images following their publication in newspapers in July 2011 over Slater's objections that he holds the copyright, and People for the Ethical Treatment of Animals (PETA), who have argued that the copyright should be assigned to the macaque.

Copyright in compilation is a facet of copyright law that may provide copyright protection to a compilation of material, irrespective of copyright in the underlying material.

Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___ (2017), was a U.S. Supreme Court case in which the court decided under what circumstances aesthetic elements of "useful articles" can be restricted by copyright law. The Court created a two-prong "separability" test, granting copyrightability based on separate identification and independent existence; the aesthetic elements must be identifiable as art if mentally separated from the article's practical use, and must qualify as copyrightable pictorial, graphic, or sculptural works if expressed in any medium.

The protection of intellectual property (IP) of video games through copyright, patents, and trademarks, shares similar issues with the copyrightability of software as a relatively new area of IP law. The video game industry itself is built on the nature of reusing game concepts from prior games to create new gameplay styles but bounded by illegally direct cloning of existing games, and has made defining intellectual property protections difficult since it is not a fixed medium.

The labor theory of copyright, also known as the natural rights theory, is one of the most prominent theories of copyright, among others like the personality theory and the incentive/welfare theory. According to the labor theory, an individual has a right to the product of their labor, whether physical or intellectual. It is based on the John Locke's labor theory of property which says that persons are entitled to the fruits of their own labor, and by extension, intellectual property can be viewed as the fruits of an individual's mental labor. While the Lockean theory was originally intended for conventional forms of property, it can be extended to justify intellectual property in general and copyright in particular if we view an owner's claim to traditional forms of property as being analogous to an author's claims over their intellectual property.


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Further reading