TY - JOUR
AU - Simonova,, Anastasia
AB - Abstract US Copyright Office Review Board, Hastens Sangar AB Fabric Pattern, Correspondence ID: 1- 2BDGRHF; SR 1-4268431251, 5 October 2018 In compliance with the enhanced originality standard as resulting from the rejection of the ‘sweat of the brow’ approach in Feist Publ’ns, Inc v Rural Tel Serv Co, 499 U.S. 340, 345 (1991), the US Copyright Office Review Board has confirmed the refusal to register a chequered fabric pattern as a copyright work. Legal context Originality has always been one of most important criteria that a work needs to satisfy in order to be eligible for copyright protection. Under 17 USC § 102(a), a work may be protected if it qualifies as an ‘original work of authorship fixed in any tangible medium of expression’. The term ‘original’ consists of two components: independent creation and sufficient creativity. The former means that a work should be created by the author himself and not simply copied from any other work. The latter means that work must display sufficient creativity. The traditional approach in the USA was in the sense of protecting both low authorship works, which required labour and represented mainly economic interest (‘sweat of the brow’), and high authorship works, which required certain level of creativity. However, with the decision of the US Supreme Court in Feist Publ’ns, Inc v Rural Tel Serv Co, 499 US 340, 345 (1991), the relevant approach changed, as the ‘sweat of the brow’ was rejected. Today, for copyright protection to arise under US law, a modicum of creativity is required. The decision commented in this note helps to understand how the originality standard established in Feist is applied in practice. Facts Hastens Sangar wanted to register a copyright claim in a work consisting of a two-dimensional graphic pattern with white, dark blue, medium, blue and light blue rectangles arranged in a chequered pattern. The Copyright Office refused the registration. According to the examiner, the colour scheme of three shades and the design of the box cheques were not creative enough to constitute a work which could be protected by copyright law (Letter from Sandra Ware, Registration Specialist, to David May, 3 May 2017). Hastens Sangar requested the Office to reconsider its decision on a number of grounds, including that the work at issue produces an optical illusion. Analysis In October 2018, the Copyright Office Review Board affirmed the refusal and reached the conclusion that the work of Hastens Sagar does not contain the authorship required to sustain a claim to copyright. The Copyright Office regulations implement the requirement of creativity that was described in the Feist decision, which means that a work must embody some creativity in order to be protected by copyright. According to the Review Board, the work at hand was a simple combination of basic geometric shapes. Such composition of simple squares is commonly used in a number of designs. As for the colours, it was found that use of blue and white did not raise the work to the level of copyrightability. In line with the decisions in Coach, Inc v Peters, 386 F Supp 2d 495, 496 (SDNY 2005) and Satava v Lowry, 323 F 3d 805, 811 (9th Cir 2003), the Review Board concluded that a simplistic arrangement of elements is not eligible for copyright protection. Practical significance There is still a possibility that the Copyright Office will register a work which consists of geometric shapes, but only if these design elements are arranged in a creative way. It is also important to take into account that Copyright Office uses objective criteria to decide whether a work is original or not. The underlying symbolic meaning, impression and the intent of author are irrelevant to whether a work contains a sufficient amount of creativity. The most relevant aspect of the Review Board conclusion is indeed the emphasis on using objective criteria to determine whether a work is sufficiently creative to warrant copyright protection. Such approach might influence whether registration should be granted to, eg contemporary artistic objects. So, some of Kenneth Noland’s artworks, that is, schematic compositions in different combinations of colour and paintings composed entirely of horizontal stripes of pure colour, might be unlikely to be regarded as sufficiently original under this test. In a similar fashion, the whole category of ready-made artworks from manufactured objects might be considered insufficiently original as well. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - US Copyright Office Review Board applies Feist originality standard to fabric pattern
JO - Journal of Intellectual Property Law & Practice
DO - 10.1093/jiplp/jpy188
DA - 2019-03-01
UR - https://www.deepdyve.com/lp/oxford-university-press/us-copyright-office-review-board-applies-feist-originality-standard-to-XHDf7lp0d2
SP - 180
VL - 14
IS - 3
DP - DeepDyve
ER -