Sweat of the Brow Doctrine

A copyright concept that the mere expenditure of effort in creating a work does not mean that it is entitled to copyright protection, rather the work must exhibit a degree of originality. The amount of originality required varies from country to country, with U.K. copyright law requiring very little, the U.S. in an intermediate position, and Germany and Italy requiring high levels of originality (excluding for example mere craftsmanship.)

The most famous recent instance of the term being used was in the case Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) in which the United States Supreme Court ruled that the “sweat of the brow” expended on organizing the entries in a telephone directory did not rise to a level of originality sufficient to justify extending copyright protection. One result of Feist is that the EU adopted the Database Directive creating a sui generis form of IP protection for databases justified primarily by the effort involved in creating them.

A more interesting historic example of the sweat of the brow doctrine is International News Service v. Associated Press, 248 U.S. 215 (1918); INS were the Hearst newspaper chain, which early in World War I took a pro-German position, which led to the British and French government prohibiting their use of transatlantic telegraph wires from England and France. As a result, the Hearst chain was unable to report war news easily; to partially solve this problem, INS took to reading news reports in AP newspapers and telegraphing salient facts to Hearst’s west coast papers, which were several time zones later. AP brought suit for copyright infringement, but it was held that there was no copyright in the facts of the stories, which had resulted from AP newsgathering efforts (though INS’ activities were held to be “unfair competition.”) Although not a patent law concept, the term “sweat of the brow” is also sometimes used to explain that the expenditure of technical skill and effort, without an actual invention, but does not entitle a person to a patent.