Threshold of originality

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).

While works that do not meet these thresholds are not eligible for copyright protection, they may still be eligible for protection through other intellectual property laws, such as trademarks or design patents (particularly in the case of logos).

states that the design of a typeface cannot be protected under U.S. law. The non-eligibility of "textual matter" was raised in Ets-Hokin v. Skyy Spirits Inc., judging whether photographs of bottles of SKYY vodka were original enough for protection:

The Skyy vodka bottle, although attractive, has no special design or other features that could exist independently as a work of art. It is essentially a functional bottle without a distinctive shape.

Turning next to the bottle's label, which the district court also cited in part in categorizing Ets-Hokin's photos as derivative works, we note that "[a] claim to copyright cannot be registered in a print or label consisting solely of trademark subject matter and lacking copyrightable matter." Although a label's "graphical illustrations" are normally copyrightable, "textual matter" is not—at least not unless the text "aid[s] or augment[s]" an accompanying graphical illustration. The label on Skyy's vodka bottle consists only of text and does not include any pictorial illustrations.

In works produced in a mechanical medium, “there is broad scope for copyright . . . because ‘a very modest expression of personality will constitute originality.’” With respect to United States law, Stephen M. McJohn writes:

The limitation of copyright to "works of authorship" also implies an author. This appears to mean that a human created the work, using the requisite creativity. In a work made through a completely mechanical process, copyright might be denied on the basis that no one was the "author".

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