Commons:Порог оригинальности

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Порог оригинальности — понятие в авторском праве, которое используется для определения того, может ли определенная работа, или ее часть, быть защищена авторским правом. Оно используется для разграничения одних работ, которые в значительной степени оригинальны и требуют правовой защиты, от тех, которые не требуют. В данном случае "оригинальность" означает "выход из-под пера (оригинального) создателя, автора" (подчеркивая этого автора как правовое лицо), а не "никогда не существовавшее и не встречавшееся до этого" (что могло бы требовать, например, патентной защиты этого нового произведения).

The remainder of this page discusses images judged ineligible for copyright protection by a court or similar authority. It's usually unable to determine whether a specific image is within the threshold of originality without a judicial decision. However, per precautionary principle, the image should be deleted if there's significant doubt that the image may be copyrighted.

Для дополнительной информации см. Порог оригинальности в Википедии.

США

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COM:TOO United States

США

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

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 a "Threshold of originality" section to the appropriate Commons:Нормы авторского права по территориям country subpage, and add a link to it with an entry below.


According to the 2008 Copyright Law, work that may be protected includes: Photography work that has been created using an innovative mode; Innovative work of handicraft or industrial art (carpet designs, rugs, felt carpet and its attachments etc.); Innovative work which has been created based on the public culture (folklore) or national cultural heritage and art.[2008 Article 6(1) items 7-9]

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COM:TOO Austria

Австрия

These logos are X mark.svg Нет:

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COM:TOO Brazil

Бразилия

There are some court cases related to threshold of originality in Brazil. According to one 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 threshold of originality is considerably lower than the United States, which is the general reference in Commons.[7]

Examples:

  • Symbol OK.svgДа. In the case of Boneco de Preço Miúdo (2011), puppets that were a tridimensional and humanized version of a logo were deemed by the court to lack enough originality to be protected. The court considered that there was no originality or unpublished work in the puppets because they represented an already existing symbol (the supermarket's logo), and that there were already previous 3D and humanized versions of that logo. The court did not grant any value nor legal protection to the specific 3D and humanized version of the logo in question, and called it something like a "stylization subordinate to a previous idea".[8]
  • Symbol OK.svgДа. Copyright for compilations/ reorganizations of already existing elements has often been rejected on court, hinting that the threshold for what constitutes an "intellectual creation" in this respect is quite high in Brazil.[9]
  • Symbol OK.svgДа. Slogans are generally acceptable. In rare occasions they may be protected, when there is such a level of creativity as to attain the level of a literary work. For example, in the Guerra das Moedas court case (2013), copyright in the expression was not recognized by the court. The verdict stated that the language is the cultural patrimony of the people, so language expressions can't be protected by law. The Rede Globo vs. Ronaldo Ciambroni case was similar.[10][11]

Some examples help define which photos are, and are not, "artistic creations", and therefore object of protection under the 1973 copyright law:

  • Symbol OK.svgДа.The facade of the Jung Frau building, in Joinville, as well as partial views of the city, when photographed in an obvious simple way, without employment of any special ("diferenciada") technique". The court ruled: "photographs are not considered artistic creations ... that portray in a manifestly simple way, without use of any differentiated technique, the front of a residential building and a partial view of the city, under a service contract with a real estate business with a predefined advertising purpose"[12]
  • Symbol OK.svgДа. Simple documentary, descriptive photographs in general, such as photographs documenting social reunions: In SC-AC 111630 SC 2002.011163-0 (2006): "mere photographic documentation, without artistic character, does not qualify for copyright ... making it possible to use a copy without mention of the photographer's name, since, according to Brazilian law, only artistic photography (by choice of the object and conditions of execution) is listed among protected works. ... [for example] with documentary photographs of social gatherings, where the author was performing duties for the defendant, a reference to the photographer's name is not required because it is not an artistic work..."[13]
  • Symbol OK.svgДа. A 2000 ruling stated: "Photographs for identity documents, produced by automatic machines, are not artistic works. ... Neither should purely technical photographs, which reproduce a certain object without the slightest artistic concern, be protected by copyright."[14]
  • X mark.svg Нет Another 2000 decision stated: "the photos [...] have an artistic character characterized by the originality, creativity and technique of its author, elements that reveal ... a work of art. They are not, as the appellant claims, mere reproductions of images for advertising purposes, or common snapshots."[15]

Paes Mendonça S.A.jpg Puppets who were a tridimensional and humanized version of this logo were deemed in court to lack enough originality to be protected.

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COM:TOO Czech Republic

Чехия

The work must be "a unique outcome of the creative activity of the author".[121/2000–2006 Art.2(1)]

For photographs and computer programs, it suffices if the work "is original in the sense that it is the author’s own intellectual creation".[121/2000–2006 Art.2(2)]

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COM:TOO Chile

Чили

The phrase "Estamos bien en el refugio los 33", a message from the Copiapó miners (penned by Jose Ojeda), was copyrighted.[16]

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COM:TOO China

Китай

China has a relatively low threshold of originality standard; basic designs may be copyrightable. One of the most noticeable cases is the logo of a company named Gang Heng (listed below) ruled by China's supreme court as copyrighted (see below).

The following example is Symbol OK.svgДа:

  • "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).

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;")
  • Handwriting: a hand-written manuscript was deemed copyrightable as work of art, according to a decision made by Nanjing Intermediate People's Court (sources: [4] [5]).
  • "LY" company logo (archived from the original), 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: [6][7])
  • Gang Heng logo: China's Supreme People's Court ruled this logo to be protected by copyright (original judgment by the Court; related news coverage).
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COM:TOO Denmark

Дания

Status Example Notes
Symbol OK.svgДа
Aalborg Broncestøberi skrifttype A, B og D.png
Three fonts not eligible for copyright protection (Supreme Court 30 June 2006, U2006.2697H). Two other fonts were found eligible for copyright.
Symbol OK.svgДа
Jydsk Vindueskompagni - skitser af vinduer og døre.png
Sketches of windows and doors not eligible for copyright protection (The Maritime and Commercial Court 8 August 2003.)[17][18]
X mark.svg Нет
Kitchen knife by yashima.jpg
The GLOBAL knife design is copyright protected in Denmark.[19]
X mark.svg Нет
Chair.png
A specific chair design (Tripp Trapp).[20]
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COM:TOO Finland

Финляндия

For works of visual art, the threshold of originality is relatively low.[21]

Simple logos, however, are generally below the threshold of originality.[22] In particular, the threshold is high when only basic colors and shapes (such as triangles, squares and circles or capital letters) are used.[23][21]

✓OK
Paavo Nurmi sytyttää olympiatulen 1952.jpg
Simple photograph with limited copyright period – not a photographic work of art.(TN 2003:6)
✓OK
Uusimaa.vaakuna.svg
Differences compared to the coat of arms of the historic region did not meet threshold of originality(TN 1998:5)
✓OK
Automotive alternator.jpg
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)
✓OK A specific house type (Eurohouse S 2, court ruling)
✓OK
Pelastakaa Lapset (Save the Children Fund) Nettivihje logo.gif
The logo is below the threshold of originality because it is "ordinary and [does] not express an independent and original result of a creative process of its author. Somebody else in undertaking a comparable task could have contrived a similar ... logo".(TN 2000:1)
X mark.svg Нет Save the Children Fund logo The logo is above the threshold of originality, because its "visual manifestation is the creative work of its author, whereby the ideological basis of the fund has been successfully conformed with in an independent and original manner... [N]o one else undertaking a comparable task could have reached a similar outcome".(TN 2010:3)
✓OK
Citymarketin logo.svg

and

K-Plussa logo (old).gif
The logos are "in their literary and visual manifestation simple and ordinary to the degree that they are not to be regarded as original works in their own regard."(TN 2009:2)
✓OK
Kiitosimeon logo.gif
The logo is "is not original and independent in such a way that it would be protected ... by copyright".(TN 2011:7)
✓OK
Soikeapallo logo.jpg
The logo is below the threshold of originality because "its central elements and the way in which they have been combined are commonly used in logos and are thus ordinary".(TN 2000:1)
X mark.svg Нет "Silmu" logo Although the logo consists of a "stylized, albeit fairly simple, red tulip", it is above the threshold of originality for works of visual art.(TN 2001:12)
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COM:TOO France

Франция

Unlike 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". 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").[24]

France has "a slightly higher threshold of originality in general, and particularly so in the context of photographic works".[25]

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 could not be protected by French law because of lack of originality.[26] According to this decision, level of originality required by this appeal court is very high. This decision was criticized but French supreme court does not control facts but only controls interpretation of the law.

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COM:TOO Germany

Германия

=== Works of fine art (including works of applied art and architectural works) ===

"Works of fine art", as defined in s 2(1)(4) of the 1965 Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte) (UrhG), is a catch-all term for works of fine art in a stricter sense, works of applied art, and architectural works. Fine art is distinguished from applied art by its lack of a utilitarian purpose.[27] For many decades, courts imposed a higher threshold of originality on works of applied art than on works of fine art ("two-tier theory").[28] In 2013, however, the Federal Court of Justice expressly changed its jurisprudence, holding that "in general, the copyright protection of works of applied art is not subject to other requirements than the copyright protection of works of non-utilitarian fine art or of literary or musical creation. It is hence sufficient that they attain a level of creativity that allows a public open to art and relatively familiar with views on art to justifiably speak of 'artistic' creations".[29]

In assessing whether an article with a utilitarian purpose is protected by copyright, one must take into account, however, that the aesthetic effect of the article can only provide a basis for copyright protection to the extent that it is not dictated by the article's utilitarian purpose, but instead is based on an artistic effort.[30] Only those features of a utilitarian article that are not entirely dictated by the technical function can justify copyright protection.[31] A feature is considered "dictated by the technical function" if the article could not function without it.[32] This includes features that, for technical reasons, must necessarily be used in articles of the same kind as the article concerned, as well as features that, while being used for technical reasons, are freely selectable or interchangeable. To the extent that the design of such features is entirely dictated by their technical function, they are incapable of justifying copyright protection of the utilitarian article.[33]

Examples from court cases on applied art:[34]

Protection denied:

  • a climbing structure for playgrounds made of ropes (pictured here, p 3 bottom) because the structure consists of freely selectable or interchangeable yet technically required features and does not exhibit artistic creativity;[35]
  • a wooden toy train ("birthday train") with wagons in which candles and numbers can be inserted (pictured here, p 3) because there were similarly-looking, pre-existing toy trains.[36]
  • a logo (pictured here in black and white) consisting of the text "Match by Audiotec X" and the commonly used "fast-forward" symbol because neither the design of the text nor the design of the symbol ("widely used in the audio world") nor the combination of the two could be considered an artistic creation.[37]

Protection accorded:

  • a design element on a cruise ship ("AIDA Smiling Lips") consisting of a mouth painted on the bow, eyes painted on the lateral board walls, and wave lines ("eyebrows") extending from the latter (pictured here, p 3);[38]
  • a train-like line of wooden animal figures on wheels ("birthday caravan") (pictured here, p 3) because it was a complete redesign of pre-existing toy trains, whose locomotive and waggons were replaced with animal figures, and the overall design (shapes, colours) was not the result of technical necessities but an expression of the author's artistic creativity;[39]
  • an urn with an airbrushed deer design (pictured here, on the left);[40]
  • the design of a combined table of standings for three football leagues, which allowed fans to continuously update the tables by sticking cardboard riders with the logos of the football clubs into slits corresponding to their current positions (the case concerned the 2011/12 version of the table by the German magazine Kicker, pictured here, accessed 24 August 2019) even though most of the design features of the sheet were determined by technical considerations;[41]

In the past decades, court cases where protection as applied art was eventually accorded primarily revolved around renowned designer objects, in particular items of furniture and lamps.[42] A few more recent examples:

  • chairs and tables based on drafts by the designers Marcel Breuer ("Wassily" chair, "Laccio" table) and Ludwig Mies van der Rohe ("Barcelona" chair, stool, couch, and table; "Brno" chair; "Prag" chair);[43]
  • the "Wilhelm Wagenfeld table lamp" (pictured here, accessed 24 August 2019);[44]
  • a brilliant-cut diamond ring ("Niessing-Spannring") (pictured here as "Niessing Ring© ROUND", accessed 24 August 2019).[45]
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COM:TOO Hungary

Венгрия

Symbol OK.svgДа

  • stylized text with a common stylized globe icon (does not show the actual image).[46]

X mark.svg Нет

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COM:TOO Iran

Иран

X mark.svg Нет for most logos. The level of originality required for copyright protection in Iran seems very low.

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

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COM:TOO Ireland

Ирландия

Pictogram-voting-question.svg Unknown

Despite uncertainty on the required level of originality needed to qualify for copyright protection, images that have been retained on Commons include:

Image Description Discussion
ISPCA official logo.png ISPCA official logo Commons:Deletion requests/File:ISPCA official logo.png
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COM:TOO Italy

Италия

Hogan Lovells states "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."[48]

Probably this applies to logos too. These files have been kept as simple logos:

But the logo of AC Parma was deleted as being a complex logo.[49]

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COM:TOO Japan

Япония

Logos in the gallery below are Symbol OK.svgДа 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.[50]

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.

Asahi logo.svg (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.[51]
Cup Noodles.jpg (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.[52]
Olympic flag.svg The Court is negative towards recognizing the symbol as a copyrightable work of fine arts, because it is considered merely relatively simple graphic elements.[53]
  • Furby toy: utilitarian, so not protected by copyright as an artistic work. Not utilitarian in the United States, so photos of the toy can't be uploaded to Commons.[54]
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COM:TOO Libya

Ливия

For photographic and cinematic works which are limited to the mere mechanical transmission of scenery, rights expire 5 years from the date of first publication.[9/1968 Article 20]

According to Jean-Luc Putz, 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 with other Benelux states or France.[55]

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'". In this judgment, the Supreme Court ruled that:[56]

  • 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':[57]

  • 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 on Stokke v. Fikszo that:[58]

  • 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 ... The Court of Justice of the European Union has has formulated the benchmark in such a way that it must concern "an intellectual creation of the author of the work".
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COM:TOO Norway

Норвегия

Not protected

Two-minute theatre play.[59]

Protected
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COM:TOO Peru

Перу

The general definition of a "work" in the 1996 law is "any personal and original intellectual creation capable of being disclosed or reproduced in any form that is or may yet become known".[822/1996 Art.2(17)]

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. Simple photographs are those which fail to meet the general definition of a "work".[822/1996 Art.144]

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. Article §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".

Court cases
  • Landscape photograph: Ruled as without originality. In 2009 the 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".[61] The subject is discussed in a 2017 article published by the Instituto Portugues de Fotografia.[62]
  • Heart reproduction commissioned to a laboratory in order to be presented in an exposition: Ruled as without originality.[61]
  • Clothing/Fashion: Ruled as without originality.[63]
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COM:TOO Russia

Россия

No information available

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COM:TOO Senegal

Сенегал

Works of the mind may enjoy protection only if they are original. "Originality" means the work bears the stamp of the author's personality.[2008-09 Article 7]

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COM:TOO Slovenia

Словения

The threshold of originality in Slovenia depends on the field of creativity. If the maneuvering space of the possible creativity is narrower, it requires more creativity for a work to be copyrighted.[64]

In this regard, the following court cases are relevant:

Applied arts:

  • VSL0069492 - the design of a couch set has been found to be below the threshold.
  • VS0011606 - the design of a sales stand has been found to be above the threshold.

Architecture:

  • VSL00432 - only the works that constitute an original artwork are copyrighted; the renovation plan of Ljubljana Castle as well as the newly built and (at least some of) the renovated parts of the castle count as such.

Titles:

  • VS07924 - the title "Brez zavor" (meaning "Without inhibitions") has been found to be below the threshold.

According to a machine translation of the Copyright Act as amended up to Act No. 14634 of March 21, 2017,

  • "Work" refers to a creation that expresses human thoughts or feelings.[432/1957–2017 Article 2.2]
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COM:TOO Sweden

Швеция

"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."[65]

Status Example Notes
Symbol OK.svgДа
Upphovsrätt på teknisk ritning.png
Technical drawing. According to decision by the Swedish Supreme Court.[8]
X mark.svg Нет
4xcolor mini maglite 20050614.jpg
Mini Maglite torch (Högsta domstolen)
X mark.svg Нет Porcelain [9] "Sundborn", made by Rörstrand
X mark.svg Нет Photo illustrating a newspaper article [10] (removed from the website in 2004 because of copyright infringement, protected as a photographic work for 70 years after author's death)
X mark.svg Нет Knitted tunic (NJA 1995 s. 164)
X mark.svg Нет Technical drawings (NJA 1998 s. 563)

The level required for copyright is low. Independently created works with "minimal creativity" are eligible, according to Taiwan's Intellectual Property Office.[66]

The following examples are Symbol OK.svgДа:

  • These two artworks with traditional design elements are unprotected, according to court decisions that they do not meet the originality threshold for copyright protection:[67]
  • Simple typeface, such as the typeface of Sunshow company logo:

The following examples are X mark.svg Нет:

Common law countries

System-search.svgSee also: Commons:When to use the PD-signature tag#Common law countries и #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 a "Threshold of originality" section to the appropriate Commons:Copyright rules by territory country subpage, and add a link to it with an entry below.

X mark.svg Нет for most logos. The level of originality required for copyright protection in Australia is very low. Images showing the en:Australian Aboriginal Flag have been consistently deleted from Commons, since an Australian court has ruled that the flag is copyrighted.[70] E.g.

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COM:TOO Canada

Канада

Symbol OK.svgДа 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.

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COM:TOO Hong Kong

Гонконг

X mark.svg Нет for most logos. The level of originality required for copyright protection is presumably very low.

Because Hong Kong was a territory of the United Kingdom until 1997, Hong Kong law is modeled on UK law, and in the absence of any specific case law to the contrary it is reasonable to assume that the rules will be similar. See the United Kingdom for more details.

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COM:TOO India

Индия

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.

Robbin Singh has written an essay on the subject that may be useful.[71]

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COM:TOO Israel

Израиль

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.[72]

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.

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COM:TOO Nigeria

Нигерия

Under the Copyright Act of 1988 (Chapter C.28, as codified 2004), A literary, musical or artistic work shall not be eligible for copyright unless (a) sufficient effort has been expended on making the work to give it an original character;...[C28/2004 Section 1(2)]

As stated in the New Zealand government's NZGOAL copyright guide (January 2015),

  • 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”. 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.[73]

Symbol OK.svgДа Lego bricks (see w:Interlego v Tyco Industries)

X mark.svg Нет 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:

Digital copies of images

In 2014 (updated 2015) the UK's Intellectual Property Office issued an advice notice, which said, in part:[76]

  • According to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

Логотипы и флаги

Архитектура

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

Note that some of these decisions were controversial.

Фотографии

Photographs which have been deemed ineligible for copyright protection:

Диаграммы

Charts which have been deemed ineligible for copyright protection. See the section farther down on partial copying or cropping of uncopyrightable elements from copyrighted works. See also:

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.

✓OK
Burr by Gore Vidal - first edition cover.jpg
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.

See also

Примечания

Some citation text may not have been transcluded

  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. Bauer logo.
  4. Oberster Gerichtshof statement.
  5. Zimmermann Fitness logo.
  6. Oberster Gerichtshof statement.
  7. Denis Borges Barbosa (dezembro de 2012). Como o requisito autoral de originalidade vai se radicando nos precedentes judiciais (in Portuguese). Retrieved on 2019-03-12.
  8. Página 417 da Judicial - 1ª Instância - Capital do Diário de Justiça do Estado de São Paulo (DJSP) de 26 de Julho de 2011 (in Portuguese). Retrieved on 2019-03-12.
  9. 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).
  10. Guerra das Moedas court case.
  11. Quarta Turma não reconhece violação de direito autoral em título de novela da Globo (in Portuguese) (18 May 2017). Retrieved on 2019-03-12.
  12. Tribunal de Justiça de Santa Catarina TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0 (in Portuguese). "não se considera criação artística as fotografias tiradas por profissional do ramo que retratam de forma manifestamente singela, sem o emprego de qualquer técnica diferenciada, o frontispício de um edifício residencial e a vista parcial da cidade, em observância a contrato de prestação de serviços entabulado com empresa do ramo imobiliário e com destino publicitário previamente ajustado entre as partes"
  13. Tribunal de Justiça de Santa Catarina TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0 (in Portuguese). Retrieved on 2019-03-11. "mera documentação fotográfica, sem caráter artístico, afasta a incidência do direito de autor, "... tornando possível o uso de terceiro sem menção do nome do fotógrafo, pois, conforme lei brasileira, somente a fotografia artística (pela escolha do objeto e condiçõe de execução) se inscreve dentre as obras protegidas." (...) [segue exemplo ilustrativo] fotografias documentárias de reuniões sociais - Autor que na época estava do desempenho de funções junto ao réu - Inexigível a referência ao nome do fotógrafo por não se tratar de trabalho artístico - Falta de originalidade, criatividade, valor estético ou de furo de documentação"
  14. Tribunal de Justiça do Paraná TJ-PR - Apelação Cível : AC 946589 PR Apelação Cível - 0094658-9 (in Portuguese) (2000). Retrieved on 2019-03-12. "As fotografias destinadas a documentos de identidade, produzidas por máquinas automáticas, não são obras artísticas. (...) Também não devem alcançar a proteção do direito de autor as fotografias meramente técnicas, em que se procura uma reprodução tal qual de certo objetivo, sem a menor preocupação artística."
  15. Tribunal de Justiça de Minas Gerais TJ-MG : 2933464 MG 2.0000.00.293346-4/000(1) (in Portuguese). Retrieved on 2019-03-12. "as fotos [...] denotam caráter artístico, caracterizando-se pela originalidade, criatividade e técnica da sua autora, elementos que dela não se podem excluir como reveladores, a princípio, de uma obra de arte. Não são elas, como pretende o apelante, meras constatações ou reproduções de imagens para fins publicitários, ou instantâneos comuns"
  16. Message which brought hope now copyright of Chile miner. BBC (22 October 2010). Retrieved on 2019-01-21.
  17. Cite error: Invalid <ref> tag; no text was provided for refs named V7401
  18. Cite error: Invalid <ref> tag; no text was provided for refs named Domstol300011
  19. Cite error: Invalid <ref> tag; no text was provided for refs named SC187-2008
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  21. a b TN 2011:7
  22. TN 2014:13
  23. TN 2001:12
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  27. Bundesgerichtshof 12 May 2011, case I ZR 53/10 Seilzirkus, (2012) 114 GRUR 58 [17].
  28. See, in particular, Bundesgerichtshof 27 November 1956, case I ZR 57/55 Morgenpost, 22 BGHZ 209, 215ff; Bundesgerichtshof 22 June 1995, case I ZR 119/93 Silberdistel, (1995) 97 GRUR 581, 582. See further A Ohly, "Where is the Birthday Train Heading? The Copyright-Design Interface in German Law" in G Karnell and others (eds), Liber Amicorum Jan Rosén (eddy.se ab 2016) 593ff.
  29. Bundesgerichtshof 13 November 2013, case I ZR 143/12 Geburtstagszug, 199 BGHZ 52 [26].
  30. Bundesgerichtshof 13 November 2013, case I ZR 143/12 Geburtstagszug, 199 BGHZ 52 [41].
  31. Bundesgerichtshof 12 May 2011, case I ZR 53/10 Seilzirkus, (2012) 114 GRUR 58 [19].
  32. Bundesgerichtshof 12 May 2011, case I ZR 53/10 Seilzirkus, (2012) 114 GRUR 58 [20].
  33. Bundesgerichtshof 12 May 2011, case I ZR 53/10 Seilzirkus, (2012) 114 GRUR 58 [20].
  34. Appeals court level or higher. Omitted here are cases where copyright protection was denied based on the now-abandoned "two-tier theory".
  35. Bundesgerichtshof 12 May 2011, case I ZR 53/10 Seilzirkus, (2012) 114 GRUR 58 [30].
  36. Oberlandesgericht Schleswig 11 September 2014, case 6 U 74/10 Geburtstagszug II, (2015) 15 GRUR-RR 1 [17]–[23].
  37. Oberlandesgericht Frankfurt am Main 12 June 2019, case 11 U 51/18, (2019) 63 ZUM 787, 788f.
  38. Bundesgerichtshof 27 April 2017, case I ZR 247/15 AIDA Kussmund, (2017) 119 GRUR 798 [11].
  39. Oberlandesgericht Schleswig 11 September 2014, case 6 U 74/10 Geburtstagszug II, (2015) 15 GRUR-RR 1 [29]–[31]. Finding of copyright protection not challenged on appeal: Bundesgerichtshof 16 June 2016, case I ZR 122/14 Geburtstagskarawane, (2016) 118 GRUR 1291.
  40. Oberlandesgericht Köln 20 February 2015, case 6 U 131/14 Airbrush-Urnen, (2015) 15 GRUR-RR 275 [14]–[16].
  41. Oberlandesgericht Nürnberg 20 May 2014, case 3 U 1874/13 Kicker-Stecktabelle, (2014) 116 GRUR 1199, 1201.
  42. S Zentek, "Acht Jahrzehnte verkanntes Design im deutschen Urheberrecht: Die Geschichte des Schutzes von Gebrauchsgestaltungen unter besonderer Berücksichtigung des Nationalsozialismus" (doctoral thesis, Heinrich-Heine-Universität Düsseldorf 2015) 276. See also L Mezger, Die Schutzschwelle für Werke der angewandten Kunst nach deutschem und europäischem Recht (V&R unipress 2017) 60f ("hardly possible" in particular to keep track of the jurisprudence on designer furniture).
  43. Oberlandesgericht Hamburg 27 April 2011, case 5 U 26/09; affirmed in pertinent part on appeal: Bundesgerichtshof 5 November 2015, case I ZR 91/11 Marcel-Breuer­-Möbel II, (2016) 69 NJW 2335 [26]–[28].
  44. Oberlandesgericht Hamburg 30 March 2011, case 5 U 207/08; affirmed in pertinent part on appeal: Bundesgerichtshof 5 November 2015, case I ZR 76/11 Wagenfeld-Leuchte II, (2016) 69 NJW 2338 [20]–[22].
  45. Oberlandesgericht Düsseldorf 30 May 2000, case 20 U 4/99 Spannring, (2001) 1 GRUR-RR 294, 296.
  46. Logó szerzői jogi védelme Ügyszám: SZJSZT – 17/12 (in Hungarian). Copyright Expert Panel (20 February 2013). Retrieved on 2019-03-26.
  47. SZJSZT 1/2005
  48. Cite error: Invalid <ref> tag; no text was provided for refs named Lovells
  49. Logo on external site DR
  50. Cite error: Invalid <ref> tag; no text was provided for refs named Law1980
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  55. Jean-Luc PUTZ. das luxemburgische Urheberrecht: eine Einführung (in German). Retrieved on 2019-01-29.
  56. Cite error: Invalid <ref> tag; no text was provided for refs named Van-Dale/Romme
  57. Cite error: Invalid <ref> tag; no text was provided for refs named Endstra-tapes
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  60. Cite error: Invalid <ref> tag; no text was provided for refs named JuliBlåfjelllogo
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  68. the news article about this case's court ruling, and the full text of the ruling)
  69. [1][2]
  70. Harold Joseph Thomas v David George Brown & James Morrison Vallely Tennant [1997 FCA 215]. Federal Court of Australia (9 April 1997).
  71. Cite error: Invalid <ref> tag; no text was provided for refs named Singh
  72. Cite error: Invalid <ref> tag; no text was provided for refs named Pessach
  73. NZGOAL copyright guide. New Zealand Government (January 2015). Retrieved on 2019-03-16.
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For more complete, working references see Commons:Нормы авторского права по территориям and the individual countries and territories: