How to push nevpihuemoe or how to protect the unprotected?

About once a week, regular pioneers send me an alluring, tempting offer to associate them with Cocoa, Apple or Samsung because they came up with brilliant advertising for these companies. More than half of such letters are supplied with an offer to sign an Eerie Document with them, which will protect them from the situation when I take advantage of their brilliant idea, leaving them without millions of dollars (euros). The second half offers just to pay them in advance and then they will immediately tell everything.



I must say that at the dawn of my work, I signed a couple of such Dreadful Documents just for the sake of curiosity. The fact that there will be nonsense, it was clear in advance, but the characters who offered all this were so amusing that I decided to see what was inside. Honestly, it was not worth it, as a result I don’t even remember what it was there, but it was not even nonsense, but something completely trivial and made on every corner. Just the author was not aware.

')

Beginners Authors of the Ingenious usually claim to be the author of the most unexpected things, for example, using the blue background for the site, the Helvetica font for the logo selling the text of your megacourse, the red sole for shoes (stop me). By the way, some of the list even manage to do a bit of it.

In this case, the general rule is the sad fact for some of the mastriders that ideas are not protected. It seems to be. Let us clarify what is still to be protected and what can be done to protect when it is impossible, but really want to.



Copyright



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





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







Suppose you come up with something creative, in your opinion quite original (even unique) and suitable for sale. Well, for example, a new TV show format, a marketing strategy for brand promotion, a creative advertising campaign or a prototype of a software product. Conducted a study and are confident that so far no one has got out with this. And you have an inner explanation to yourself why it has never occurred to anyone before, except for "because I am a genius, and the rest are idiots."



Is this property copyrighted 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 to be protected. On the other hand, is it just an idea or concept that is not protected?

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

Here is a good example of a television format: Channel One paid $ 0.5 million for a single issue of One to One. When the copyright holder sold the show to the Russia-1 channel already for $ 1 million, Channel One simply changed the name and began releasing the analogue To- Exactly . It is obvious that there was nothing to sue for. And at that moment there was an embarrassment: in court, the format holder could not prove the copyright to the format, because the court attributed it to ideas, concepts, methods, and not to protected works.



http://kad.arbitr.ru/PdfDocument/5c96fbdb-e39b-47ae-a56c-dc820c59d2d7/A40-84902-2014_20141014_Reshenija%20i%20postanovlenija.pdf





Suddenly so. Russia-1 was especially glad, because it learned that in vain it paid $ 1 million for the issue, it was possible to save money. Honestly, I wonder if she continued to pay ... But who will tell me.



Another kind of dilemma confronts the courts when the authors try to protect advertising slogans, product names and selling texts.



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



Article 1228 of the Civil Code



1. The author of the result of intellectual activity is recognized as a citizen, by whose creative labor such result is created.



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



Article 1259 of the Civil Code

The objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the method of its expression.



Clause 28 of the Resolution of the Plenum of the Armed Forces and the Supreme Arbitration Court No.5 / 29:

When analyzing the question of whether a particular result is a copyright object, the courts should take into account that, in the sense of Articles 1228, 1257 and 1259 of the Civil Code of the Russian Federation, only the result created by creative work is such, in their relationship. It should be borne in mind that until proven otherwise, the results of intellectual activity are assumed to be created by creative work.

It should also be borne in mind that by itself the lack of novelty, uniqueness and (or) originality of the result of intellectual activity cannot indicate that such a result was not created by creative work and, therefore, is not subject to copyright.

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

Here's an example when you failed to prove a violation of rights, although the site of the service was copied quite accurately.



Quite a common story, the site www.edavmig.ru repeats the design (structure, graphic elements, components and colors of the components), part of the content (text, graphic images, photos), corporate identity (identity) of the site www.restoranonline.ru Both sites now don't work, you have to take my word or time machine. Last rushed to court.



Guess who won?



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



For more details, refer to Cases No. 60-33580 / 2013 .



Justification of the Court:



According to the legal position set forth in the decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 18, 2000 No. 295/00, a claimant requiring protection of exclusive rights and claiming compensation for violation of exclusive rights must prove that these rights have been transferred to him legally.



There is no evidence in the case file indicating that the authors of the controversial work transferred exclusive copyright to Web Studio AAA, and therefore did not confirm the fact that the person named possesses exclusive rights to the controversial content of the site www.restoranonline.ru



Not the whole site is copied, but only photos and individual elements. These photos are made not 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 presence 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 creative work of the author.



Regarding the elements of the structure and arrangement of text, shapes, buttons, arrows, lines, fonts, links, shapes, icons and inscriptions of the corresponding form 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 anyone's creative work (clause 1 of 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 the rights? Not certainly in that way. The plaintiff needs to be proactive 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 managed to convince the court of the presence of copyright on the appearance of the cake and to prohibit competitors from producing copies. Copies of cakes , Karl.



Quote from the court decision:



“Appearance of cake“ Berry. Assorted ”was created on the basis of the existing appearance of the cake“ Malika - Classic ”, while preserving in processing all the basic elements of the form of the original work (appearance in the form of a stylized heart with a side surface decorated with cream and crumb, used to decorate the upper surface using the method of continuous filling fruit, located under the jelly, in combination with small round berries protruding from it, using a goffered cream to finish the top surface of the edge border bands, and therefore is not a creatively independent work. ”



The result - the copyright is recognized and the interests of the copyright holder are protected. Confectioners of the world sob and throw out typical forms in the form of hearts. For niiiizyaaaa.



In general, it is clear that the court does not often hack in the subject matter, because 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 spirit feast) additional evidence was presented - a specialist opinion, based on which the court concluded that the defendant had violated copyrights .



Quote from the court decision:



“Establishing the fact that the respondent violated the exclusive rights of the claimant to the work by reworking the design of the wedding ring, the courts rightly accepted as a proof of the fact that the original work was being processed the opinion of specialist N 003406/3/77001/442013 / -1533 of 09.12.2013. Despite the fact that the specified conclusion within the meaning of Article 86 of the Arbitration Procedure Code of the Russian Federation is not an expert opinion, it is lawfully accepted by the courts as written evidence, which contains the opinion of a specialist in art history. The competence of the specialist who conducted the study is confirmed by a copy of the diploma BCB N 0497467.

The defendant, considering the expert’s opinion as inadequate evidence, did not file a statement about his falsification in the manner provided for by Article 161 of the Arbitration Procedure Code of the Russian Federation, didn’t petition the court to appoint a forensic examination to establish the presence or absence of the fact that the design of the engagement ring was processed.

The evidence that refutes the findings contained in the expert opinion, as well as confirming the originality of the design of the defendant's wedding ring, is not the latest in the case file ”.



In this case, also managed to protect the rights to the work of design.



Total



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



(c) Cyril Mityagin, Cyril Gotovtsev