How to cram the invisible or how to protect the unprotected?

    About once a week, regular pioneers send me an extraordinary tempting offer to associate them with cocacola, apple or Samsung because they came up with ingenious advertising for these companies. Most of these letters are equipped with a proposal to sign the Creepy Document with them, which will protect them from the situation when I use their ingenious idea, leaving them without millions of dollars (euros). The second half offers just to pay them in advance, and then they Immediately Tell Everything.

    I must say that at the dawn of my activity, I signed a couple of such Scary Documents just for the sake of curiosity. The fact that there would be nonsense was clear in advance, but the characters who offered all this were so entertaining that I decided to see what was inside. Honestly, it wasn’t worth it, I don’t even remember what it was, but it wasn’t even rubbish, but something completely trivial and being done on every corner. The author simply was not in the know.

    Beginning Authors of Genius usually claim authorship of the most unexpected things, for example, using a blue background for a site, a Helvetica font for a logo selling the text of its megacourse, a red sole for shoes (stop me). By the way, some of the list even manage to feel it a little.

    Moreover, the general rule is the sad fact for some criterias that ideas are not protected. It seems to be. Let's make it clear - what is nevertheless subject to protection and what can be done to protect when it is impossible, but really want to.


    On the one hand, the law refers to objects that are not protected by copyright

    Article 1259 of the Civil Code
    Article 1259 of the Civil Code

    5. Copyright does not extend to ideas, concepts, principles, methods, processes, systems, methods, solutions to technical, organizational or other problems, discoveries, facts, programming languages, geological information about subsoil.
    6. The following are not objects of copyright:
    1) official documents of state bodies and local self-government bodies of municipal formations, including laws, other regulatory acts, court decisions, other materials of a legislative, administrative and judicial nature, official documents of international organizations, as well as their official translations;
    2) state symbols and signs (flags, emblems, orders, banknotes and the like), as well as symbols and signs of municipalities;
    3) works of folk art (folklore) that do not have specific authors;
    4) messages about events and facts that are purely informational (news of the day, television programs, timetables of vehicles, etc.).

    On the other hand, the law contains an open list of copyright objects:

    Article 1259 of the Civil Code of the Russian Federation
    Article 1259 of the Civil Code of the Russian Federation

    1. The objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the way it is expressed:
    literary works;
    dramatic and musical dramatic works, script works;
    choreographic works and pantomimes;
    musical works with or without text;
    audiovisual works;
    works of painting, sculpture, graphics, design, graphic stories, comics and other works of art;
    works of decorative, applied and scenographic art;
    works of architecture, urban planning and landscape art, including in the form of projects, drawings, images and layouts;
    photographic works and works obtained by methods similar to photography;
    geographical and other maps, plans, sketches and plastic works related to geography, topography and other sciences;
    other works.
    The objects of copyright also include computer programs, which are protected as literary works.

    Suppose you came up with something creative, in your opinion quite original (even unique) and suitable for sale. Well, for example, a new format for a television show, a marketing strategy for brand promotion, a creative advertising campaign or a prototype of a software product. We conducted a study and are sure that so far no one has crawled out with this. And you have an internal explanation for yourself why it still hasn’t occurred to anyone except “because I am a genius, and the rest are all idiots.”

    Is this object protected by copyright or not? On the one hand, such an object is not in the list of objects, but it can be attributed to other works that are subject to protection. On the other hand, is it just an idea or concept that is not protected?

    In order not to spread thought on the tree, we immediately give the answer: what will your creation as a result of decide the court. Well, that is, if you get to it.

    Here is a good example with a television format: Channel One paid $ 0.5 million for one issue of the One to One program. When the copyright holder sold the show on Rossiya-1 channel for already $ 1 million, Channel One simply changed its name and began releasing an analogue of Just Like It . Obviously, there was something to sue. And at that moment there was an embarrassment: in the court, the copyright holder of the format failed to prove the copyright in the format, because the court attributed it to ideas, concepts, methods, and not to protected works.

    Suddenly so. Russia-1 was especially pleased, which learned that it had been in vain to pay $ 1 million for the issue, and it was possible to save. Honestly, I wonder if she continued to pay ... But who will tell me.

    A different kind of dilemma arises before the courts when authors try to protect advertising slogans, product names and selling texts.

    There is a battle over whether the result is creative or not. On the one hand, the law protects only creative results:

    Article 1228 of the Civil Code of the Russian Federation

    1. A citizen is recognized as the author of the result of intellectual activity, whose creative work created such a result.

    On the other hand, everything that you create is presumed to be created by creative work:

    Article 1259 of the Civil Code of the Russian Federation
    The objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the way it is expressed.

    Paragraph 28 of the Resolution of the Plenum of the Supreme Court and the Supreme Commercial Arbitration Court No. 5/29:
    When analyzing the question of whether a particular result is subject to copyright, the courts should take into account that, according to the meaning of Articles 1228, 1257 and 1259 of the Civil Code of the Russian Federation, only that result is such a relationship. which is created by creative labor. It should be borne in mind that unless otherwise proven, the results of intellectual activity are assumed to be created by creative work.
    It should also be borne in mind that the absence of novelty, uniqueness and (or) originality of the result of intellectual activity alone cannot indicate that such a result was not created by creative work and, therefore, is not the subject of copyright.

    Books have been written on this subject, dissertations have been defended, and many discussions on the forums. Those who want to sink to the bottom can go here . But then again - in your particular case, the court will decide. As we saw above, this may turn out to be a Very Sudden Solution.

    Here is an example for you when it was not possible to prove a violation of rights, although the site of the service was copied quite accurately.

    A fairly common story, the site repeats the design (structure, graphic elements, components and color scheme of the components), part of the content (text, graphic images, photographs), corporate identity (identity) of the site Both sites now don't work, you have to take my word for it or time machine. The latter rushed to court.

    Guess who won?

    You will laugh, the intruder site won because the Plaintiff chose the wrong tactics and tried to confirm his rights to food photos. Something tells me that it was not just. Apparently the rest was even less unique :-) But look:

    More details can be found in the materials of Case No. A60-33580 / 2013 .

    Justification of the Court:

    According to the legal position set out in the decision of the Presidium of the Higher Arbitration Court of the Russian Federation dated 04/18/2000 No. 295/00, the plaintiff, demanding protection of exclusive rights and claiming compensation for violation of exclusive rights, must prove that these rights were transferred to him on legal grounds.

    There is no evidence in the case file evidence of the transfer by the authors of the controversial work of exclusive copyright to the AAA Web Studio company, and therefore the fact that the named person has exclusive rights to the controversial content of the site is not confirmed

    Not the entire site was copied, but only photographs and individual elements. These photos were not made by the copyright holder or the plaintiff, but by the restaurants themselves. These photos and descriptions of dishes are essential parts of the content of both sites, the availability of which determines the value of sites for consumers. In addition, the plaintiff did not provide evidence that the selection and arrangement of these elements are an independent result of the author’s creative work.

    As regards the elements of the structure and location of the text, forms, buttons, arrows, lines, fonts, links, shapes, icons and inscriptions of the corresponding shape and color, as well as individual pages that, according to the plaintiff, were also used by the defendant, the courts concluded that they are technical and informational in nature and are not created as a result of someone’s creative work (Clause 1, Article 1228 of the Civil Code of the Russian Federation).

    Hello my dear creators of unique projects based on templates purchased in libraries. You are in flight.

    Everything is sad?

    It turns out that despite the presumption of creative activity, the courts still refuse to protect rights? Not certainly in that way. The plaintiff needs to actively act in the process: (1) substantiate the creative nature of the activity and (2) provide additional evidence.

    Two positive examples, again about food:

    Generally beautiful: The plaintiff was able to convince the court of the existence of copyright on the appearance of the cake and prohibit competitors from issuing copies. Copies of cakes , Carl.

    Quote from judgment:

    image“Appearance of the cake“ Berry. Assorted ”was created on the basis of the existing appearance of the“ Malika - Classic ”cake, preserving all the basic elements of the original work’s form during processing (appearance in the form of a stylized heart with a cream and crumb decoration on the side surface, using slices to completely fill the upper surface) fruits located under the jelly, in combination with small round berries protruding from it, the use in the decoration of the upper surface of the edge border of cream, made in the form of corrugation band), and therefore is not a creatively independent work. ”

    Bottom line - copyright is recognized and the interests of the copyright holder are protected. Confectioners of the world weep and throw out standard forms in the form of hearts. For niiiizyaaaa.

    In general, it is clear that the court does not often cut into the subject base, therefore a good method is to attract an expert. For example, in the case of wedding rings (Kirill Mityagin, my co-author was a participant in this feast of the spirit), additional evidence was presented - the expert’s conclusion, based on which the court concluded that the defendant had violated copyright .

    Quote from the court ruling:

    “By establishing the fact that the defendant violated the plaintiff’s exclusive rights to the work by processing the design of the engagement ring, the courts legitimately accepted as proof of the fact that the original work was processed the expert’s conclusion N 003406/3/77001/442013 / I-1533 dated 12/09/2013. Despite the fact that this conclusion is not an expert’s opinion within the meaning of Article 86 of the Arbitration Procedure Code of the Russian Federation, it is lawfully accepted by the courts as a written evidence that contains the opinion of a specialist in the field of art history. The competence of the specialist who conducted the study is confirmed by a copy of the BCB diploma N 0497467.
    The defendant, considering the expert’s opinion to be improper evidence, did not file a statement about his falsification in the manner provided for in Article 161 of the Arbitration Procedure Code of the Russian Federation, he did not apply for a forensic examination to establish whether or not the fact that the engagement ring design was redesigned.
    The evidence refuting the conclusions contained in the expert’s opinion, as well as confirming the originality of the defendant’s engagement ring design, was not submitted to the case materials by the latter. ”

    In this case, it was also possible to protect the rights to the work of design.


    It is not enough to do something creative - you also need to be creative in proving the creative nature of your work in order to get protection from the plagiarist. Practice shows that with a fair amount of skill you can try to protect even the most unexpected garbage, such as a red sole.

    (c) Kirill Mityagin, Kirill Gotovtsev

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