Banner & Witcoff, Ltd.
II. ADMINISTRATIVE RECORD
On August 16, 2018, CDP filed an application to register the Work. A Copyright Office Registration Specialist refused to register the claim for the Work, finding that it lacked sufficient authorship to support a copyright claim. Initial Letter Refusing Registration from U.S. Copyright Office, to Heather Smith-Carra, Banner & Witcoff, Ltd. 1 (Dec. 19, 2018).
CDP subsequently requested that the Office reconsider its initial refusal to register the Work. Letter from Heather Smith-Cara, Banner & Witcoff, Ltd., to U.S. Copyright Office 1 (Sept. 12, 2019). CDP contended that the Work met the low level of creativity enumerated by the Supreme Court. Id. at 1–2 (citing Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991) and Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903)). CDP asserted that the Work’s details, including the contrast of colors and the arrangement of the letters and numbers, are sufficiently original and creative for registration. Id. at 2.
The Office, however, denied CDP’s first request to reconsider the refusal to register. The Office assessed the Work’s individual elements as well as the Work as a whole and concluded that it lacked the authorship necessary to support a copyright claim. First Refusal of Request for Reconsideration from the U.S. Copyright Office, to Heather Smith-Carra, Banner & Witcoff, Ltd. 1 (June 19, 2019). The Office observed that copyright cannot protect the Work’s component elements, which consist of common and familiar shapes, words and short phrases, or minor variations thereof. Id. at 2–3 (citing 37 C.F.R. § 202.1(a)). While the Office agreed that some combinations of unprotectable elements could give rise to sufficient creativity for copyright registration, the combinations in the Work were insufficiently creative to support registration. Id. at 3.
CDP then submitted a second request for consideration reiterating their arguments that the Work contains sufficient authorship. Letter from Ross A. Dannenberg, Banner & Witcoff, Ltd., to U.S. Copyright Office 1 (Sept. 12, 2019) (“Second Request”). CDP’s also compared the Work to the registered American Airlines Flight Symbol copyright claim, noting both that logos with minimal creativity can by protected by copyright and, similar to the American Airlines Flight Symbol application, the creative details in the Work’s deposit copy may have been difficult to perceive. Id. at 4.
III. DISCUSSION
- A. The Legal Framework – Originality
A work may be registered if it qualifies as an “original work[] of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). In this context, the term “original” consists of two components: independent creation and sufficient creativity. Feist, 499 U.S. at 345. First, the work must have been independently created by the author, i.e., not copied from another work. Id. Second, the work must possess sufficient creativity. Id. Only a modicum of creativity is necessary, but the Supreme Court has ruled that some works (such as the alphabetized telephone directory at issue in Feist) fail to meet even this low threshold. Id. The Court observed that “[a]s a constitutional matter, copyright protects only those constituent
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