Commons:Threshold of originality
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The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author" (insofar as it somehow reflects the author's personality), rather than "never having occurred or existed before" (which would amount to the protection of something new, as in patent protection).
- For further information, see Threshold of originality on Wikipedia
Contents
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[edit] Official decisions
See also: Commons:Image casebook[edit] United States
These images are 
OK.
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Bridgeman v Corel: court ruling that 2D reproductions of the original art has no valid claims for new copyrights (case description)
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NFL abandoned its copyright claims on the fleur-de-lis (news report)
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Best Western hotels (authority)
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DUB Magazine (authority)
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Nikken USA Inc. (authority)
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Bruce Lee core symbol (authority)
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New York Arrows logo (case report}
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Car Credit City logo: Copyright office ruled this logo too simple to be protected, but a slightly more complicated version was accepted for registration (authority)
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Symbols for "Myst" (authority)
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Letter S (authority)
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Registration was cancelled (authority)
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Registration refused (authority)
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Ets-Hokin v Skyy Spirits Inc
photo is protected, but not the bottle -
A plastic version lacked originality (L Batlin & Son v. Snyder)
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Koosh balls; "inseparable", OddzOn Products, Inc. v. Oman (case report)
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addition of shading, colors, labels to a free black and white outline map (case report)
[edit] 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 caselaw or legal advice on this issue in any country, please add an entry below.
[edit] Austria
These logos are 
Not OK:
[edit] Chile
The phrase "Estamos bien en el refugio los 33", a message from the Copiapó miners (penned by Jose Ojeda), was copyrighted (source).
[edit] China (PRC)
This image is Not OK:
- 道 (both the photo and the character 道 are copyrighted, see New China article)
[edit] Denmark
[edit] Not protected
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The WWF panda logo not protected by copyright (Sø- og Handelsretten (The Maritime and Commercial Court) in March 1998, U 1998:946 S and NIR 69:3, p. 413-418 [2000])
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Three fonts not eligible for copyright protection (Supreme Court 30 June 2006, U2006.2697H). Two other fonts were found eligible for copyright.
[edit] Protected
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The GLOBAL knife design is copyright protected (Surpreme court 187/2008)
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A specific chair design (Tripp Trapp) (Surpreme Court 306/2009)
[edit] Finland
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Simple photograph with limited copyright period – not a photographic work of art.
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Differences compared to the CoA of the historic region did not meet threshold of originality (TN 1998:5)
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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)
[edit] 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 it bears the "imprint of the personality of the author."[1] 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)
- Also see COM:FOP#France for TOO on buildings etc.
These are Not OK:
- Tablecloth (TGI Paris 28 November 2008; CA Paris 7 April 2010)
- Nail clipper (TGI Paris 11 April 2011)
[edit] Germany
[edit] Not protected
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Socialist Unity Party of Germany
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German public broadcaster ARD
German copyright law: see also[2]
[edit] Japan
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. [3][4] Japanese courts have decided that to be copyrightable, a text logo needs to have artistic appearance that is worth artistic appreciation. Logos below are OK to upload.
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(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]
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(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]
[edit] Norway
[edit] Not protected
[edit] Protected
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A specific chair design (Tripp Trapp) (Norges høyesterett)
[edit] Peru
The general definition of a "work" in Art. 2.17 of the 1996 law is work: any personal and original intellectual creation.[3]
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).[3] Simple photographs are those which fail to meet the general definition of a "work".
[edit] Sweden
[edit] Not protected
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Technical drawing
[edit] Protected
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Mini Maglite torch (Högsta domstolen)
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Lamino chair (Eksjö tingsrätt according to a Göteborgsposten article)
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Tripp Trapp chair (Svensk forms opinionsnämnd according to Infotorg juridik)
- Porcelain[5] ("Sundborn", made by Rörstrand)
- Photo illustrating a newspaper article[6] (removed from the website in 2004 because of copyright infringement, protected as a photographic work for 70 years p.m.a.)
[edit] Switzerland
[edit] Common law countries
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 copyright even in Common law countries.
If you are aware of specific caselaw or legal advice on this issue in any country, please add an entry below.
[edit] Australia
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:
- Image:Flag of the Australian Aborigines.svg (fair-use on en.wikipedia.org)
Images showing the en:Australian Aboriginal Flag have been consistently deleted from Commons (Commons:Deletion requests/Image:Flag of the Australian Aborigines.svg, Commons:Deletion requests/File:Flag of Australia with Aboriginal flag replacing Union flag.svg, Commons:Deletion requests/File:Austr.Aborig.png, Commons:Deletion requests/File:Black and red flag with yellow disc variations.gif), and an Australian court has ruled that it is copyrighted ([7]).
[edit] Canada
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."
[edit] 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 [8] for a 2007 paper on this shift; or see [9], 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.").
[edit] United Kingdom
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:
- File:EDGE logo.svg (uploaded as free in the US only on en.wikipedia.org)
but: British courts have ruled it eligible for copyright protection.[10][11] - File:Clerical Medical.png (uploaded as free in the US only on en.wikipedia.org)
See Commons:Deletion requests/File:Clerical Medical.png.
[edit] Commons decisions
[edit] Logos and flags
- The logos in these images may *not* be eligible for copyright protection
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claimed not to reach the threshold
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claimed not to reach the threshold
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(DR)
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(DR) "PD text logo -- no question"
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(Australian company logo DR) "PD-textlogo"
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(Flag DR) "image was made in Israel, where the flag cannot have a copyright"
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(Canada company logo DR) "PD-textlogo"
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(DR)
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(DR)
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(DR)
.svg){kind=small}
- File:Hercules 1998 Intertitle.png originally "background isn't elaborate or eligible for any type of copyright" (decided here in 2010), deleted in 2012 as "shows artistry beyond the TOO".
[edit] Architecture
Images which have been kept because of lack of originality or de minimis:
[edit] Diagrams
Diagrams which have been deemed ineligible for copyright protection:
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(DR)
[edit] Photographs
Photographs which have been deemed ineligible for copyright protection:
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(DR) Photograph of a three-dimensional object (drawer pull) with bevels and cast shadows
[edit] References
- ↑ 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
- ↑ Schack, Haimo (in german) Urheber- und Urhebervertragsrecht, pp. 118
- ↑ a b Peruvian copyright law of April 23, 1996
[edit] See also
- Commons:When to use the PD-scan tag - on the level of originality needed for a scan of a work to generate a copyright independent of the work
- Commons:When to use the PD-Art tag - on the level of originality needed for a photo of a work to generate a copyright independent of the work
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