The examples and perspective in this article deal primarily with Western culture and do not represent a worldwide view of the subject. (October 2011) (Learn how and when to remove this template message)
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).
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).
Contemporary with Arthur Conan Doyle, Maurice Leblanc directly featured Sherlock Holmes in his popular 1905 series about the gentleman thief, Arsène Lupin, though legal objections from Conan Doyle forced Leblanc to modify the name to "Herlock Sholmes" in reprints and later stories.
Two unauthorised serialisations of The War of the Worlds novel were published in the United States prior to the publication of the novel. The first was published in the New York Evening Journal between December 1897 and January 1898. The story was published as Fighters from Mars or the War of the Worlds. It changed the location of the story to a New York setting.The second version changed the story to have the Martians landing in the area near and around Boston, and was published by the Boston Post in 1898, which Wells protested against. It was called Fighters from Mars, or the War of the Worlds in and near Boston. Both pirated versions of the story were followed by Edison's Conquest of Mars by Garrett P. Serviss. Even though these versions are deemed as unauthorised serialisations of the novel, it is possible that H. G. Wells may have, without realising it, agreed to the serialisation in the New York Evening Journal.
Nosferatu is an unauthorized and unofficial 1922 film adaptation of Bram Stoker's 1897 novel Dracula . Various names and other details were changed from the novel, including Count Dracula being renamed Count Orlok to avoid copyright issues. Even with several details altered, Stoker's heirs sued over the adaptation, and a court ruling ordered all copies of the film to be destroyed. However, a few prints of Nosferatu survived, and the film came to be regarded as an influential masterpiece of cinema.
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, rather than the casino, owned the footage.
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 copying and selling the photographs did not lead to a defense of fair dealing, 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".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. Nonetheless, the animal rights group PETA sued Slater on behalf of the monkey under the next friend principle.
Despite consisting only of two fields and a circle at the centre, the Federal Court of Australia has upheld copyright claims over the Australian Aboriginal Flag by its designer, Harold Thomas.
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 a "modicum of creativity" in decision making rather than a mechanical exercise in order to be original.
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.
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, 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.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 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.
A controversial decision on 16 July 2013 rendered "backseat conversations"—such as those between Willem Endstra and police—not sufficiently creative for copyright protection.
Section 13(1)(a) of the Indian Copyright Act, 1957 mentions 'originality' as a requirement for copyright protection to literary, dramatic, musical and artistic works. Courts have interpreted this requirement of 'originality' in different ways. This has given rise to various doctrines/tests that can be helpful in determining whether a work meets the threshold of originality. The most prominent case with respect to 'originality' under the Indian Copyright Law is the Eastern Book Company v DCB Modak .This judgment gave rise to two doctrines i.e. modicum of creativity and the skill and judgment test. This remains the accepted and current position of law in India as of now. However, prior to this, the Indian Courts used to follow the Sweat of the Brow approach.
This theory bases the grant of copyright protection on the effort and labour that an author puts into her work as opposed to the creativity involved. Locke's theory of labour as property has often been extended to give jurisprudential basis to this theory of copyright law. In the case of V. Govindan v E.M. Gopalakrishna Kone,it was held that compilations of information would meet the threshold of 'originality' under the Indian Copyright Act since it involves some level of 'skill, labour and brain'. A similar line of reasoning was adopted in the case of Burlington Home Shipping Pvt Ltd v Rajnish Chibber where a database was held to be original enough to be protected by copyright under Indian law. However, like in other jurisdictions, this theory was discarded by the Indian Courts also and the focus was shifted to the creativity involved in any work.
The EBC Modak case is the Indian counterpart of the Feist Publications case in terms of the test it laid down. It concerned the copyrightability of Supreme Court judgments that were copy-edited and published by Eastern Book Company. These judgments were published along with 'headnotes' that were written by the Company itself. While explicitly discarding the Sweat of the Brow theory, the Court held that simply copy editing would not meet the threshold of originality under copyright law since it would only demonstrate an "amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity would be completely excluded.".Thus, it introduced the requirement of 'creativity' under originality. With respect to the level of creativity involved, the court adopted the 'minimal degree of creativity' approach. Following this standard, the headnotes that did not copy from the judgment verbatim were held to be copyrightable.
Finally, the Court also gave way to the 'Skill and Judgment Test' which is more or less a compromise between the sweat of the brow theory and the modicum of creativity test. While relying on the CCH Canadian Case,the Court essentially held that a work would meet the originality standard as long as there is labour or effort involved but not only labour. It must involve some level of skill and judgment as well. However, this approach mirrors the Sweat of the Brow theory more closely and is therefore a difficult theory to defend. Further, the Court held the division of a judgment into paragraphs and numbering them was enough to meet this standard of 'Skill and Judgment'. Whether this is the correct interpretation of the test as given in the CCH Canadian Case remains debatable.
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 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.
These decisions were superseded by the insertion of Article 2 paragraph 3bis, effective 1st April 2020."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."
In Taiwan, independently created works with "minimal creativity' are eligible for copyright protection.
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.
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.
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.
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.
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."
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.
Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of 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.
Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive in the field of EU copyright law, made under the internal market provisions of the Treaty of Rome. It was replaced by the 2006 Copyright Term Directive (2006/116/EC).
Walter v Lane  AC 539, was a judgement of the House of Lords on the question of Authorship under the Copyright Act 1842. It has come to be recognised as a seminal case on the notion of originality in copyright law and has been upheld as an early example of the sweat of the brow doctrine.
A database right is a sui generis property right, comparable to but distinct from copyright, that exists to recognise the investment that is made in compiling a database, even when this does not involve the "creative" aspect that is reflected by copyright. Such rights are often referred to in the plural: database rights.
Originality is the aspect of created or invented works as being new or novel, and thus reproductions, clones, forgeries, or derivative works. An original work is one not received from others nor one copied from or based upon the work of others.. It is a work created with a unique style and substance. The term "originality" is often applied as a compliment to the creativity of artists, writers, and thinkers. The modern idea of originality is tied to Romanticism, by a notion that is often called romantic originality.
CCH Canadian Ltd v Law Society of Upper Canada,  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.
Sweat of the brow is an intellectual property law doctrine, 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 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.
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.
In regards to copyright on religious works, it is not always clear who the rightholder is. Under the provisions of the Berne Convention, copyright is granted to the author on creation of the work. Several religions claim that all or some of their works were authored by their god or gods.
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 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. In the United States, any work published before January 1, 1925, is generally considered public domain.
Interlego AG v Tyco Industries Inc was a case in copyright law that originated in Hong Kong that eventually went before the Judicial Committee of the Privy Council in the United Kingdom.
Authorship and ownership in copyright law in Canada is an important and complex topic which lies at the nexus between Canada's Copyright Act, an important body of case law, and a number of compelling policy motives. Analysis of Authorship and ownership of copyrightable works in Canada can proceed by examination of the rules determining the initial allocation of copyrights, rules governing subsequent changes in ownership, and finally rules governing complex works such as compilations.
Atari Games Corp. v. Oman is an appeal of a court case concerning whether a video game with very simple graphical and audio elements may be copyrighted. Breakout is a paddle and ball video game created by the plaintiff, Atari Games Corporation, initially released in 1976. Eleven years later, in 1987, the plaintiff sought registration for the work with the US Copyright Office. On February 13, 1987, and again on May 22, 1987, Register of Copyrights Ralph Oman refused to register the work because it "did not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds". Atari challenged Oman's decision not to award the game copyright protection.
The monkey selfie copyright dispute is a series of disputes about the copyright status of selfies taken by Celebes crested macaques using equipment belonging to the British nature photographer David Slater. The disputes involve 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 macaque should be assigned the copyright.
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.
Copyright is a protection of intellectual property that give exclusive right to the author(s) of a creative work. A video game may be protected as a creative work. Whether or not a work is copyrighted, and the duration of the copyright may differ between countries, and may also be limited by country specific exceptions, like the fair use doctrine in the United States.
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.
To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants.