Banner & Witcoff, Ltd.
success in the marketplace are not factors in determining whether a design is copyrightable. See, e.g., Bleistein, 188 U.S. 239.
- B. Analysis of the Work
After carefully examining the Work and applying the legal standards discussed above, the Board finds that the Work does not contain the necessary authorship to sustain a claim to copyright.
Both the Work’s individual elements and the Work as a whole fail to demonstrate copyrightable authorship. The Work consists of a short phrase in typeface and familiar geometric shapes—lines, dotted lines, and circles—that are not protected by copyright. 37 C.F.R. § 202.1(a) (noting that copyright registration cannot be obtained for “[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; [or] mere variations of typographic ornamentation, lettering or coloring”); Compendium (Third) §§ 313.3(D), 313.4(J), 906.1, 906.2; see also Eltra Corp. v. Ringer, 579 F.2d 294, 298 (4th Cir. 1978) (noting Congress has consistently refused copyright protection for typeface); Tompkins Graphics, Inc. v. Zipatone, Inc., No. 82-5438, 1983 U.S. Dist. LEXIS 14631, at *4 (E.D. Pa. Aug. 15, 1983) (“[B]asic geometric shapes have long been in the public domain and therefore cannot be regulated by copyright.”).
When passing the 1976 Copyright Act, Congress “considered, but chose[] to defer, the possibility of protecting the design of typefaces” and did not “regard the design of typeface, as thus defined, to be a copyrightable ‘pictorial, graphic, or sculptural work.’” H.R. Rep. No. 94-1476 at 55, 1976 U.S.C.C.A.N. 5659, 5668. Carrying out Congress’s policy decision, the Office does not register typeface, “regardless of how novel and creative the shape and form of the typeface characters may be.” Compendium (Third) § 906.4. Although some graphical works largely comprised of lettering may be copyrightable, those “very limited cases” are when such characters include original pictorial art that forms the entire shape of typeface characters, such as, where the work is “an add-on to the beginning and/or ending of the [typeface] characters.” Id. For example, this might include an oak tree for a “T” or an “O” with flourishes that make the letter appear as a wreath. See id. But the “mere use of text effects (including chalk, popup papercraft, neon, beer glass, spooky-fog, and weathered-and worn [effects]), while potentially separable, is de minimis and not sufficient to support a registration.” Id.
The Work’s characters are unprotectable typeface with text effects. Those text effects suggest science fiction or futuristic aesthetics commonly used in typeface design.[1] CDP suggests that “it is hard to imagine a book or magazine or newspaper that is printed using such a highly stylized font as the letters found in [the Work,]” because “[t]hey would be very difficult to read, and … there are only 9 of 26 letters included in the subject work [making] it is incomplete for
- ↑ See, e.g., Essqué Productions, Dark Future Font (last visited May 5, 2020), http://fontpro.com/dark-future-font-543; Maria Jose, 50 Free Futuristic Fonts to Help Make Your Designs Look Uniquely Alternative (last visited May 5, 2020), https://www.canva.com/learn/futuristic-fonts/; Mitchell Smith, Dystopia Font (last visited May 5, 2020), http://fontpro.com/dystopia-font-13473; Youssef Habchi, Indelible Font, (last visited May 5, 2020), https://indieground.net/product/indelible-font/, Kill the Noise (last visited May 5, 2020), https://www.dafont.com/kill-the-noise.font.
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