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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]

The "sweat of the brow" doctrine

Some countries grant copyright protection based on how much labour and diligence it took to create a work, rather than or in addition to how original a work is. This is referred to as the "sweat of the brow" doctrine in relation to the idiom, "the sweat of one's brow."

The sweat of the brow doctrine has been recognized at various times in the United Kingdom, Canada, Australia, and elsewhere. The 1900 UK case Walter v. Lane ruled that the copyright of an account of a speech transcribed by a reporter belonged to the newspaper he worked for because of the effort it took to reproduce his spoken words.^[2]

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.^[3] 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.^[3] In March 2012, the European Court of Justice rejected the sweat of the brow doctrine in the case of association football match schedules. They were presumed to be copyrighted by the major football leagues of the United Kingdom due to the skill and labour used in their creation; the leagues had formed Football DataCo to license this property, and had sued multiple outlets for copyright infringement of these schedules. The court ruled that despite the significant amount of effort taken in their preparation, such schedules cannot be protected when their compilation is "dictated by rules or constraints which leave no room for creative freedom."^[4]

Examples by country

United States

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).^[5] However, if such works contain some original elements–e.g. a paragraph describing the Yellow Pages, or random designs on the blank forms–then those elements can receive copyright protection.

Reproductions of public domain works

The requirement of originality was also invoked in the 1999 United States District Court case Bridgeman Art Library v. Corel Corp. In the case, Bridgeman Art Library questioned the Corel Corporation's rights to redistribute their high quality reproductions of old paintings that had already fallen into the public domain due to age, claiming that it infringed on their copyrights. The court ruled that exact or "slavish" reproductions of two-dimensional works such as paintings and photographs that were already in the public domain could not be considered original enough for protection under U.S. law, "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original".^[6]

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.^[7]

Germany

In German copyright law, the "Schöpfungshöhe" (height of creation) can 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") is low, the requirements for design, works that have a "purpose" (such as brand identification), are set much higher, as such works can be protected by the lex specialis law for design patents ("Geschmacksmustergesetz") or by trademark laws. Only design creations that are very high above the average are considered as "works of applied art" and so granted copyright. As an example in case law, the logo of the German public broadcaster ARD, is not considered protectable under German copyright law.^[8]

Originality in specific types of works

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.’”^[9] 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". ^[10]

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.^[11][12] 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."^[13]

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."^[10]

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.^[14] 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.^[15] That argument never got its day in court; instead, the case fell apart when a separate tribal court ruled that the tribes owned the footage – not the casino.^[14]

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.^[16]

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 Canada, David Vaver has expressed 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".^[17] Vaver's comment criticized the decision of the English Court of Appeal in the case of Hyde Park Residence Ltd v. Yelland from the year 2000,^[18] in which the court treated images from a security camera videotape as copyrighted and concluded that their publication in a newspaper was not covered by fair dealing.^[19]

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.^[20]

Typefaces and geometry

House Report No. 94-1476 states that the design of a typeface cannot be protected under U.S. law. The non-eligibility of "textual matter" was raised in Ets-Hokin v. Skyy Spirits Inc., judging if 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.

References

External links

• U.S. Copyright Office: Compendium of Office Practices II, section 500. URL last accessed June 26, 2006.

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