The Originality of an Artwork Determined under

the Practices of Vietnam, Germany, and the United States

Email: vinh@bross.vn

As written in our previous article “No Originality No Copyright Subsisted in Literary and Artistic Works – a Comparable Snapshot of Originality Requirement Determined by the Practices of Vietnam, the United States, UK and EU”, without the originality, a literary and artistic work shall not be protected by copyright[1].

A work of applied art is one of 12 types of literary artistic and scientific work copyrightable in Vietnam. As provided by the Vietnam IP law, a work of applied art is represented by lines, colors, shapes, and layouts with useful features, may be attached with a utility object. In terms of creation method, applied art work may be manufactured manually or industrially such as graphic design (logo representation, brand identity system and product packaging, fashion design, product design, interior design, decoration).[2]

Let’s have a quick look at the practices of adjudicating and enforcing the copyright laws in Vietnam, Germany, and the US regarding how to determine “originality” of applied arts

Viet Nam: No originality due to each separate painting being the folklore

According to the first instance case no. 213/2014/DS-ST dated August 14, 2014, People’s Court of Tan Binh District, Ho Chi Minh city, decided to dismiss the claim, reasoning that both plaintiff and defendant made and inspired in the folklore culture during which each separate painting was circulated for a long time in folklore whose authorship cannot be identified.

The US: No originality in case the design is too simple or does not have a minimal degree of creativity

In the beginning, the US Copyright Office refused the applications for registration of 2 works including CCC logo and Car Credit City logo on the ground that both were lack of authorship imprint - an essential condition for establishing copyright. After the applicant had made efforts to complaint, the US Copyright Office decided to grant registration for the second work (Car Credit City logo) while maintained the decision on refusing to grant registration for the first work (CCC logo) and concluded that based on the fundamental legal principle, only one certificate was granted for the same version of work. Even if the applicant required to grant 2 registrations, the fact that the same personal imprint had shown in both the CCC logo and Car Credit City logo would lead to the unreasonable consequence that such imprint would be granted certificate twice if the first logo was approved.[3]

In case of Best Western logo, the US Copyright Office, in the document responding to the complaint against the registration refusal submitted by the applicant’s attorney, stated that no individual element or their combination in Best Western logo met the minimal degree of original creativity; therefore, this logo did not satisfy the criteria for granting copyright.[4]

On the other hand, the US Copyright Office, in the Skyy Vodka case, supposed that to be granted copyright certification, a work must be created by human being. All works generated from the industrial process or random collection without human contribution shall not be registered.[5]

Germany: Applied-art work must reach the high creation standard to be original

In German Copyright Law, "Schöpfungshöhe" (the height of creation) may divide the copyrightable works into 2 groups that are the group of design and group of others (such as literary work). While the threshold of originality applicable for the group of others that is called "Kleine Münze" (means “small change” in German) is low, the requirement for the group of design (work used as brand identity) is much higher because such designs can be protected under the industrial design law or trademark law. Accordingly, only those designs created at an extremely high degree above the average are considered as “applied art work” to be copyrightable. For the reason, ARD logo does not satisfy the originality threshold to be protected under German Copyright Law.[6]

Should you have specific needs, please contact: vinh@bross.vn; cellphone 84-903 287 057, 84-4-3555 3466; Wechat: wxid_56evtn82p2vf22; Skype: vinh.bross.

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