The Review Board of the U.S. Copyright Office (the
Board) recently reviewed a second request by T.W.N. Industries (TWN) for
reconsideration of the Registration Program’s previous denial to register two of
its patterns. On October 25, 2017, the Board again denied registration to one of the patterns, Gold
Wood, but granted registration to the Staggered Carbon Pattern.
TWN’s patterns are designed to be used by applying
them to an object, such as an airplane interior for example.
The Board described the two patterns as such:
“Staggered Carbon is a geometric pattern consisting of repeating
rectangular bands of different sizes, shapes, and textures, arranged in a woven
pattern. The bands are two distinct gray-colored patterns. One band is dark
gray with vertical lines, and the other band is light gray with darker gray
lines.
Gold Wood is a two-dimensional graphic
design consisting of a repeating pattern of striated gold and cream vertical
lines, made to resemble a light wood grain. “
The U.S. Copyright Office had originally denied
in September 2016 copyright registration to both patterns, informing TWN that
they lacked the minimum amount of creative pictorial, graphic or sculptural
authorship necessary for a work of visual arts to be protected by
copyright.
Deemed Worthy of Copyright Protection
|
TMW then asked the Copyright Office to
reconsider its refusal, and explained
the creative process used for both patterns, which both necessitates the use of
up to three layers within Photoshop, and were hand-drawn using different
brushes and strokes.
The Copyright Office again denied registration,
as “the elongated rectangular bands”
which made up the Staggered Carbon pattern “are
a common and familiar shape” and the lines making up the Gold Wood pattern
were also “a common and familiar shape”
and thus could not be protected by copyright. The Copyright Office also found
that the Gold Wood's features were not "combined in any way that differentiates them from their basic shape and
design components," and were a "simple configuration" not protectable by copyright as "the work as a whole consists of vertical lines
in shades of gold and cream.”
TMW asked the Copyright Office to reconsider
its refusals for a second time, as allowed by 37 C.F.R. § 202.5 (c), claiming that both works were original enough to be protected by
copyright, which bears the question: what is originality under U.S. copyright
law?
What is originality
under U.S. copyright law?
Under 17 U.S.C. § 102(a), U.S. copyright
protects only "original works of
authorship." The threshold for a work to be original is, however,
quite low. As explained by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. , “[t]he sine qua non of
copyright is originality. To qualify for copyright protection, a work must be
original to the author. … Original, as the term is used in copyright, means
only that the work was independently created by the author (as opposed to
copied from other works), and that it possesses at least some minimal degree of
creativity.”
Thus two cumulative conditions are necessary
for a work to be protected by copyright:
-
It
must have been independently created by the author and
-
It
must possess at least some minimal degree of creativity
A combination of
unoriginal elements can be original enough to be protected by copyright
The Board noted that [s]ome combinations of common
or standard design elements may contain sufficient creativity with respect to
how they are juxtaposed or arranged to support a copyright… [but that] not
every combination or arrangement will be sufficient to meet this test.”
“a
combination of unprotectable elements may qualify for copyright protection… not
… any combination of unprotectable elements automatically qualifies for
copyright protection. Our case law suggests, and we hold today, that a
combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and
their selection and arrangement original enough that their combination
constitutes an original work of authorship.”
The Board also quoted § 906.1 of the Compendium of U.S. Copyright Office Practices on Common Geometric Shapes, which
explains that “the U.S. Copyright Office
will not register a work that merely consists of common geometric shapes unless
the author’s use of those shapes results in a work that, as a whole, is sufficiently
creative.”
Staggered Carbon is
original enough to be protected by copyright
The Board found that “the combination of elements in Staggered Carbon - namely the different
textures on the bands, as well as their arrangements - exhibits copyrightable
authorship,” and was original enough to be protected, quoting Feist, where the Supreme Court held that
only a ‘modicum’ of creativity is
necessary for a work to be original.
However, only the “specific combination of textures” created by TWN are protected by
copyright, not the “standard designs and
other unoriginal elements.”
Gold Wood is not original
enough to be protected by copyright
But even though the Board recognized that
Gold Wood had been independently created, it was not creative enough to be
protected by copyright, as “it consists of
simple, minor variations on common shapes arranged in an obvious and uniform
manner.” The Board explained further that Gold Wood “is made up of only a very few elements (monochromatic lines in a few
shades of gold” arranged in an unoriginal manner (densely and with only minor
and repeating variations throughout the pattern).” As explained in §
313.4(J) of the Compendium
of U.S. Copyright Office Practices, “a
work consisting of a simple combination of a few familiar symbols or designs
with minor linear or spatial variations, either in two-dimensional or three-dimensional
form,
cannot be registered.”
TWN argued that it had to make “specific choices from endless alternatives
of shapes” to create Gold Wood. But the Board explained that “it is not the possibility of choices that
determines copyrightability, but whether the resulting expression contains
copyrightable authorship.”
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