Commons:Threshold of originality
Shortcut: COM:TO · COM:TOO
The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work, or a portion of it, 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
- 1 Official decisions
- 1.1 United States
- 1.2 Civil law countries
- 1.2.1 Austria
- 1.2.2 Brazil
- 1.2.3 Chile
- 1.2.4 China (PRC)
- 1.2.5 Colombia
- 1.2.6 Denmark
- 1.2.7 Finland
- 1.2.8 France
- 1.2.9 Germany
- 1.2.10 Hungary
- 1.2.11 Iran
- 1.2.12 Japan
- 1.2.13 Netherlands
- 1.2.14 Norway
- 1.2.15 Peru
- 1.2.16 Sweden
- 1.2.17 Switzerland
- 1.2.18 Taiwan (Republic of China)
- 1.3 Common law countries
- 2 Commons decisions
- 3 References
- 4 See also
- These images are OK to upload to Commons, because they are below the threshold of originality required for copyright protection.
Bridgeman v Corel: court ruling that 2D reproductions of the original art has no valid claims for new copyrights (case description)
NFL abandoned its copyright claims on the fleur-de-lis (news report)
Best Western hotels: Consists of letters plus a simple border. None of these is eligible for copyright protection in United States. (authority)
DUB magazine: Consists of letters only. None of these is eligible for copyright protection in United States. (authority)
Nikken USA Inc. (authority)
Bruce Lee core symbol (authority)
New York Arrows logo (case report)
Car Credit City logo: Copyright office ruled this logo too simple to be protected, but a slightly more complicated version (shown in the linked letter) was accepted for registration (authority)
Symbols for "Myst" (authority)
Letter S (authority)
Registration was cancelled (authority)
Registration refused (authority)
Ets-Hokin v Skyy Spirits Inc.: Photo is eligible for copyright protection, but not the bottle
A plastic version lacked originality (L Batlin & Son v. Snyder)
Koosh balls; "inseparable", OddzOn Products, Inc. v. Oman (case report)
Map of Arkansas: Addition of shading, colors, labels to a free black and white outline map (case report)
Avenue of the Saints logo; registration refused despite compilation copyright claim for arrangement of otherwise unprotectable elements (authority)
Geek Squad logo (authority)
Subway logo (authority)
Discover It logo: the Copyright Office found that the elements, including the shading effect, were insufficiently creative to be copyright-eligible (authority)
- These are 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.
- These two "no soliciting" signs, although arguably relatively simple, have been issued copyright registration numbers by the United States Copyright Office, which means that they have been reviewed and determined to be eligible for copyright protection. It should be noted that the copyright registration applies to the images as a whole, including their borders.
- A variant of File:CarCreditCity.png with an extra border.
- w:File:Disney Junior.svg (VA0001927957).
- w:File:Prince logo.svg (VA0000832222).
- The “Omega Globe Design” (VAu000574660) was assumed to be copyrightable by the Ninth Circuit US Court of Appeals.
- Works from other countries which are above the threshold of originality of the United States but below the threshold of originality of the source country (Hasbro Bradley, Inc. v. Sparkle Toys, Inc.)
- New "pan and scan" versions of films where a widescreen film has been resized to fit the size of a TV screen even if the existing widescreen film is uncopyrighted (Maljack Productions, Inc. v. UAV Corp.)
- In 1951, this mezzotint reproduction of an existing uncopyrighted painting was found to be copyrightable.
- The clothing designs found on pp. 4–5 of the Sixth Circuit's decision in Varsity Brands et al. v. Star Athletica (2015).
VA0001789579 (and CC-BY 3.0)
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 an entry below.
These logos are Not OK:
- Bauer (Oberster Gerichtshof statement)
- Zimmermann Fitness (archived from the original on 8 Febrauary 2006) (Oberster Gerichtshof statement)
There are some court cases related to threshold of originality in Brazil. According to this 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 ToO is considerably higher than the US, which is the general reference in Commons. Examples:
- OK - Boneco de Preço Miúdo (2011) - Puppets who were a tridimensional and humanized version of this logo were deemed on court to lack enough originality to be protected. The court considered that there was no originality nor unpublished work in the puppets because they represented an already existing symbol (the supermarkets logo), and that there were already previous 3D and humanized versions of that logo. The court does not grant any value nor legal protection to the specific 3D and humanized version of the logo in question, and calls it something like a "stylization servile to a previous idea".
- OK - Copyright for compilations/ reorganizations of already existing elements has often been rejected on court, hinting that the threshold for what constitutes an "intellectual creation" on this respect is quite high in Brazil. - 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).
- OK - Slogans are generally OK. In rare occasions they may be protected, when there is such a level of creativity as to attain the level of a literary work. Example: "Guerra das Moedas" court case (2013), copyright to the expression was not recognized by the court. The Justiça Federal do RS verdict stated that the language is cultural patrimony of the people, so language expressions can't be protected by law. Similar court decision on the "As Filhas da Mãe" court case (2017).
The following example is Not OK:
- Calligraphy works, such as the work "道" on this photo, are copyrighted (see the article by Xinhua News Agency[dead link] & follow-up report)[dead link] (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;")
- To be protected as an industrial design must be apparent to the eye. Para ser protegido como diseño industrial debe ser perceptible a la vista .
- Names of newspapers, magazines, radio and television and other media does not give rise to copyright.Los nombres de periódicos, revistas, programas de radio y televisión y de los demás medios de comunicación no dan lugar a derechos de autor
- The publication is free portrait as it relates to scientific, educational or cultural in general or with facts or events of public interest or have been occurred in public. La publicación del retrato es libre cuando se relaciona con fines científicos, didácticos o culturales en general o con hechos o acontecimientos de interés público o que se hubieren desarrollado en público.
- Tender is the reproduction, by any means, of a literary or scientific, ordered or obtained by the applicant in a single copy for private use and non-profit work.Es licita la reproducción, por cualquier medio, de una obra literaria o científica, ordenada u obtenida por el interesado en un solo ejemplar para su uso privado y sin fines de lucro.
- It will be reproduced by means of painting, drawing, photography or cinematography, works which are permanently located on public roads, streets or places and to distribute and publicly communicate such copies or works.Será permitido reproducir por medio de pinturas, dibujos, fotografías o películas cinematográficas, las obras que estén colocadas de modo permanente en vías públicas, calles o plazas y distribuir y comunicar públicamente dichas reproducciones u obras.
The GLOBAL knife design is copyright protected (Surpreme court 187/2008)
Simple photograph with limited copyright period – not a photographic work of art. (TN 2003:6)
Differences compared to the CoA of the historic region did not meet threshold of originality (TN 1998:5)
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)
- A specific house type (Eurohouse S 2, court ruling)
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 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"). (Direct link to the work in question)
France has "a slightly higher threshold of originality in general, and particularly so in the context of photographic works".
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 (see ) could not be protected by French law because of lack of originality. According to this decision, level of originality required by this appeal court is very high. This decision was criticized but French supreme court doesn't control facts but only controls interpretation of the law.
- Also see COM:FOP#France for TOO on buildings etc.
These are Not OK:
- Tablecloth [dead link] (TGI Paris 28 November 2008; CA Paris 7 April 2010)
- Nail clipper [dead link] (TGI Paris 11 April 2011)
Note: Some of the information in this section may be outdated due to a 2013 German Federal Supreme court ruling on the TOO for applied art; see this English summary for details.
German copyright law: see also
Not OK for most logos. The level of originality required for copyright protection in Iran seems very low.
Are registrable for copyright protection : "(...) pictures, drawings, designs, decorative writings, (...) or any decorative and imaginative work produced in any simple or complex manner "
Logos in the gallery below are OK 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.  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.
The Court is negative towards recognizing the symbol as a copyrightable work of fine arts, because it is considered merely relatively simple graphic elements. (Tokyo District Court 昭39（ヨ）第5594 )
- 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. (Sendai High Court ruling)
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'" (HR 04-01-1991, NJ 1991, 608). In this judgment, the Supreme Court (Hoge Raad) ruled that:
|“||Bij de beoordeling van het middel moet worden vooropgesteld dat, wil een voortbrengsel kunnen worden beschouwd als een werk van letterkunde, wetenschap of kunst als bedoeld in art. 1 in verbinding met art. 10 Aw, vereist is dat het een eigen, oorspronkelijk karakter heeft en het persoonlijk stempel van de maker draagt.||”|
|“||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' (NJ 2008, 556):
|“||[D]at het voortbrengsel een eigen, oorspronkelijk karakter moet bezitten, houdt, kort gezegd, in dat de vorm niet ontleend mag zijn aan die van een ander werk (vgl. art. 13 Aw). De eis dat het voortbrengsel het persoonlijk stempel van de maker moet dragen betekent dat sprake moet zijn van een vorm die het resultaat is van scheppende menselijke arbeid en dus van creatieve keuzes, en die aldus voortbrengsel is van de menselijke geest. Daarbuiten valt in elk geval al hetgeen een vorm heeft die zo banaal of triviaal is, dat daarachter geen creatieve arbeid van welke aard ook valt te aan te wijzen.||”|
|“||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 'Stokke/Fikszo' that:
|“||Om voor auteursrechtelijke bescherming in aanmerking te komen, is vereist dat het desbetreffende werk een eigen, oorspronkelijk karakter heeft en het persoonlijk stempel van de maker draagt (vgl. HR 30 mei 2008, LJN BC2153, NJ 2008/556 (E)). Het HvJEU heeft de maatstaf aldus geformuleerd dat het moet gaan om "een eigen intellectuele schepping van de auteur van het werk" (HvJEU 16 juli 2009, nr. C-5/08, LJN BJ3749, NJ 2011/288 (Infopaq I)).||”|
|“||[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 (compare HR 30 May 2008, LJN BC2153, NJ 2008/556 (E)). The Court of Justice of the European Union has defined that the work must be: "An own, intellectual creation of the author of the work". CJEU 16 July 2009, nr. C-5/08, LJN BJ3749, NJ 2011/288 (Infopaq I)).||”|
The general definition of a "work" in Art. 2.17 of the 1996 law is work: any personal and original intellectual creation.
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). Simple photographs are those which fail to meet the general definition of a "work".
Technical drawing. According to decision by the Swedish Supreme Court 
Mini Maglite torch (Högsta domstolen)
- Porcelain ("Sundborn", made by Rörstrand)
- Photo illustrating a newspaper article (removed from the website in 2004 because of copyright infringement, protected as a photographic work for 70 years p.m.a.)
- Knitted tunic (NJA 1995 s. 164)
- Technical drawings (NJA 1998 s. 563)
Taiwan (Republic of China)
The following example is Not OK:
- Calligraphy works, such as the work "燒烤飯糰" on this photo, are copyright protected (see the news article about this case's court ruling, and the full text of the ruling).
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 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 an entry below.
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(deleted; PD-ineligible-USonly 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 ().
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."
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.
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 like the UK Courts called Sweat of the brow but this is no more applied. See Understanding The Concept Of Originality Under Copy Right Law In India.
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  for a 2007 paper on this shift; or see , 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.").
The threshold test for originality is not high (New Zealand Govt)
"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”. 67 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."
OK Lego bricks (see w:Interlego v Tyco Industries)
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.
Logos and flags
(DR) "PD text logo -- no question"
(Australian company logo DR) "PD-textlogo"
(Canada company logo DR) "PD-textlogo"
- 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".
Images which have been kept because of lack of originality or de minimis:
Note that some of these decisions were controversial.
Photographs which have been deemed ineligible for copyright protection:
(DR) Photograph of a three-dimensional object (drawer pull) with bevels and cast shadows
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.
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.
- File:BBC.svg and many associated variants for BBC divisions were kept, because they only contain Gill Sans, which is an old, standard font.
- File:Clerical Medical.png (uploaded as non-free content (fair use) on en.wikipedia.org)
See Commons:Deletion requests/File:Clerical Medical.png (with reasoning of the EDGE logo).
- Omega S.A., v. Costco Wholesale Corp., 541 F.3d 982, 983.
- Fishman, Stephen () The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More, Nolo, p. 183 Retrieved on . ISBN: 1413320287.
- Mathilde Pavis (University of Exeter), 2015.
- Schack, Haimo (in german) Urheber- und Urhebervertragsrecht, pp. 118
- Peruvian copyright law of April 23, 1996
- 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