At the end of this article you will have a clear overview about which creations qualify as “copyright works” in accordance with the Hungarian Copyright Code. I will define the expectation of the “individual-original nature” of the works and what is NOT protected by copyright. Moreover, I will tell you about the inglorious sound-alike issue by referring to the “Blurred lines” case and why this ruling would probably be different, if Hungarian law was applied.

Author: Dr. Fodor Klaudia | 7th February 2020

Which works are protected by copyright? A short but comprehensive summary in accordance with the Hungarian Copyright Code

As I explained in my earlier article, the concept of copyright is that there is a circle of precious, creative intellectual works that are worth being protected. At the end of this article you will have a clear overview about which creations qualify as “copyright works” in accordance with the Hungarian Copyright Code. I will define the expectation of the “individual-original nature” of the works and what is NOT protected by copyright. Moreover, I will tell you about the inglorious sound-alike issue by referring to the “Blurred lines” case and why this ruling would probably be different, if Hungarian law was applied.
  • CREATION
CREATION

Copyright protection in Hungary covers creations of literature, science and art, and only those that are individual and have original nature.

There is a long list in the Hungarian Copyright Code specifying, what falls within this circle (literary works, public speeches, computer programs, musical compositions, films, drawings paintings, photos, maps etc.). The ‘etcetera’ is important here: those works of art, science and literature are also protected that are not mentioned here.

First condition: the work should be a creation that is a result of an intellectual activity.

I will name you some examples that are NOT CREATIONS and therefore not subject to copyright:

  • the name of someone. If you name a bridge Chuck Norris, a company Deák Ferenc, that might raise personality right and company law queries. But it has nothing to do with copyright.
  • the life of someone. Again, if you want to make a film about Freddy Mercury, or a living person, that person or her/his heirs might not like it, so you must consult with the respective persons. But this is again not a copyright-related issue.
  • someone’s body, someone’s face. Taking picture of someone needs permission because of his/her personality rights (and not his/her copyrights). Not even Kim Kardashian’s booty is a creation.
  • INDIVIDUALITY

INDIVIDUALITY

Second condition: the creation should be of individual nature. This means that
the way of the expression throughout the work reflects the personality, individuality of the creator.

Let’s take an example.

I have an idea making a film about kids having extraordinary powers living in a world full of magic together with regular humans. These children gradually realize their features and they learn to use them appropriately, to save the world against the evil forces. There is a central evil character who wants to destroy their world. But the kids together with their masters defeat the villain.

Amazing story, right?

Oh no, this story is already taken. This is the Harry Potter saga!

No, you might say. This story can only be the classical X-men series!

Or, hold on, it is the TV show Heroes? The Chronicle? Smallville?!?

You are all right. This storyline can belong to any of these films.

This is the reason why the description of a storyline, of the mere acts that happen in a book or a film is not protected by copyright. Because it has no individual character.

Individuality means that the author could have chosen between more options how to carry out the story and he did it in his own particular, creative, individual way.
It is the way of expression in the work that will be protected by copyright and not the content. So, everyone, feel free to write another book about kids with superpowers.
Photo: Flickr (CC)
  • ORIGINALITY

ORIGINALITY

Third condition, in order to gain copyright protection, the creation should be ‘original’.
Originality means that the author created the work himself and did not copy it from someone else’s work.

If we capture a work’s individual part in another work, then this is the adaptation/copy of the first (of the original) work. The second author’s work will not serve as original regarding these elements.

There are however elements of a work that are not original, and therefore not protected:

  • the style of the work (that are characteristic to a whole bunch of works of the same genre and define rock ‘n roll, drum ‘n bass, minimal electric, salsa music etc.)
  • the atmosphere, the vibe of a work (however, the individual-original characters of the work are already protected)
  • trivial, routine elements of a copyright work that each educated author knows and uses while creating (eg. colors in a painting, commonly used words in a book; the 4-chords that are the basis of many pop songs)
There are many elements in a copyright work that are not protected, because they don’t have original character.
These elements can be copied, taken over, inserted without further permission of the other author. You might also be inspired by the style or atmosphere of an earlier song and then you’ll write your own (original) one. This is essential in artistic creation.
  • BLURRED LINES

BLURRED LINES

The threshold can be thin between taking lawful creative inspiration from an earlier copyright work and the misappropriation of protected elements from it. Only the first can be done without permission.

‘Blurred lines’ is the title of the song that has recently caused the most relevant court case in this matter in the USA.

Photo: freepngimg

Pharrell Williams and Robin Thicke lost a lawsuit brought by Marvin Gaye’s descendants, who argued that Pharrell/Robin’s song “Blurred Lines” copied Gaye’s song from 1977 “Got to Give Up” mainly because the authors took over the vibe, the groove of the earlier song.

Some call this a catastrophically bad ruling, since it required that musicians pretend that they had no musical influences.

Photo: Mick O (CC)
Robin Thicke wasn’t this happy when he heard the final ruling: 5 million dollars must be paid to the claimants plus a royalty rate of 50 percent of songwriter and publishing revenues.

In accordance with the Hungarian copyright law this ruling might be erroneous. As long as no original, protected elements are used in the other work, no infringement should be established. ‘Sounding like’ the other song is not copyright infringement per se, because the vibe of a song is not an original element.
  • THE PROTECTION OF 50 SHADES OF GREY AND TIK TOK

THE PROTECTION OF 50 SHADES OF GREY AND TIK TOK

Does copyright work need to have a certain length or quality?

I’m glad you asked! No!

The Hungarian law says that the copyright protection does not depend on quantitative, qualitative, or aesthetic characteristics or any judgment of the quality of the work.

Once at court I heard a reasoning from a lawyer that electronic music cannot even be considered as copyright work as this is not music just “clapping radiators”.
In another case one of my colleagues was complaining, how come that death metal bands can receive royalties because in her opinion their music is abnormal and tasteless.
And for many, Fifty Shades of Grey does not reach the level of being a piece of literature…

…but this all does not matter, since copyright protection is not a matter of taste!
And this is awesome, because it does not allow that anyone could judge, decide, or censure, which work receives the protection, and which does not.
This is a guarantee for free creation and the freedom of art.

Further, the length of a work does not matter either.

In a recent court case, the Beijing Internet Court ruled that a 13-second Tik Tok video can also be protected by copyright.

The court ruled that “the length of the video did not necessarily relate to creativity. Objectively speaking, if a video was too short, it could be difficult to form an original expression. However, some authors are still able to achieve originality; in which case, the shorter the video, the more difficult it was to be original, and so the more likely it was that the finished work would actually be a creative one.”

Let’s think about poets who were able to write wonderful poems in only one line. Prerequisite for the protection is that that one line is individually attributable to them.
All in all: a work that has individual and original character, can be protected by copyright,
  • even if it is extremely short,
  • even if you don’t like the work,
  • even if you think, nobody likes it,
  • even if in your opinion, it has a low quality.
  • WHAT ELSE IS NOT PROTECTED BY COPYRIGHT
WHAT ELSE IS NOT PROTECTED BY COPYRIGHT
There is a lot more to say but I will keep it short from here…
The copyright code defines a list of creations, other results of intellectual activities that are not protected by copyright:
  • principles, theories, procedures, operating methods. eg. the concept of a board game, a training method, a food recipe
  • mathematical model
  • data, news, information. Just like with stories: not the content but the expression will be protected
  • ideas. Thus, ideas can lawfully be ‘stolen’. Keep them secret or make them real before it happens!
  • SUMMARY

SUMMARY

To wrap it up:
  • if you are wondering if you own copyright in a work,
  • if you are wondering if a work is protected by copyright,
  • if you want to avoid committing copyright infringement,
  • if you think, someone infringed your copyright,
  • if you have trouble with the differentiation between copyright works, ideas, methods,
and you are active in Hungary, contact me, I can help you to navigate through the maze.
In the upcoming articles, I will write about how copyright protection starts and how long it lasts.

My mission: I realized that there are many misconceptions about copyright that I call “copyright myths”. Therefore, I have started a copyright awareness raising campaign on social media – the English blog series is one part of it. Follow me on Facebook and Instagram for the Hungarian contents (#kfodorlegal). Let’s kill copyright myths once and for all. #KillingCopyrightMyths

Dr. Klaudia Franciska Fodor is an attorney-at-law in Budapest, specialized in copyright, real estate and company law. She used to work for the Hungarian copyright organization, Society Artisjus. Don’t hesitate to contact her in civil law related legal matters in Hungary.

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