Page:Discover It Design US Copyright Office decision.pdf/4

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Cowan, Liebowitz & Latman, P.C.
Attn: Thomas Kjellberg
- 4 -
September 11, 2013

Finally, Copyright Office Registration Specialists (and the Board, as well) do not make aesthetic judgments in evaluating the copyrightability of particular works. They are not influenced by the attractiveness of a design, the espoused intentions of the author, the design's uniqueness, its visual effect or appearance, its symbolism, the time and effort it took to create, or its commercial success in the marketplace. See 17 U.S.C. § 102(b); see also Bleistein v. Donaldson, 188 U.S. 239 (1903). The fact that a work consists of a unique or distinctive shape or style for purposes of aesthetic appeal does not automatically mean that the work, as a whole, constitutes a copyrightable "work of art."

B. Analysis of the Work

After carefully examining the Work, and applying the legal standards discussed above, the Board finds that Discover It Design fails to satisfy the requirement of creative authorship.

As a preliminary matter, our decision to deny registration rests firmly on our conclusion that the Work lacks a sufficient amount of original and creative authorship to warrant copyright protection. The Work's purported use for commercial or advertising purposes has no bearing on this determination. To the extent that the Office has referred to the Work as a logo, a "commercial label," or even a credit-card design, these terms are for descriptive purposes only. They play no role in our analysis of whether the Work is sufficiently creative to support registration under the provisions of the Copyright Act explained herein.

The Board finds that none of the Work's constituent elements, considered individually, are sufficiently creative to warrant protection. As noted, 37 C.F. R § 202.1 (a), identifies certain elements that are not copyrightable. These elements include: "[w]ords and short phrases such as names, titles, slogans; familiar symbols or designs; [and] mere variations of typographic ornamentation, lettering, or coloring." Id. Here, the Applicant's Work consists of a public domain rectangle with rounded corners; a public domain semi-circle; the colors metallic blue, orange, and white; the word "it"; and a pre-existing logo. Consistent with the above regulations, the public domain shapes, the single word "it"; the font the Applicant used to create the word "it," and the Work's simple color scheme are all, in and of themselves, ineligible for copyright registration. See Id. (prohibiting the registration of basic symbols or designs); see also Racenstein & Co., Inc. v. Wallace dba ABC Window Cleaning Supply, 51 U.S.P.Q. 2d 1031 (S.D.N.Y. 1999) (indicating a word or short phrase, alone, generally cannot support a copyright claim); see also Coach, Inc. v. Peters, 386 F. Supp. 2d 495, 498-99 (indicating mere variations in typographic ornamentation or lettering cannot support a copyright claim); and see Boisson v. Banian, Ltd., 273 F.3d 262, 271 (2d Cir. 2001) (indicating mere coloration cannot support a copyright claim). Thus, we conclude the Work's constituent elements do not qualify for registration under the Copyright Act.

Further, the Board finds that the Work, considered as a whole, fails to meet the creativity threshold set forth in Feist. 499 U.S. at 359. As explained, the Board accepts the principle that combinations of unprotectable elements may be eligible for copyright registration. However, in order to be accepted, such combinations must contain some distinguishable variation in the selection, coordination, or arrangement of their elements that is not so obvious or minor that the "creative spark is utterly lacking or so trivial as to be nonexistent." Id.; see also Atari Games, 888 F.2d at 883 (finding a work should be viewed in its entirety, with individual uncopyrightable elements judged not separately, but in their overall interrelatedness within the work as a whole). Viewed as a whole,