Attn: Thomas Kjellberg
II. ADMINISTRATIVE RECORD
On September 6, 2012, the United States Copyright Office (the "Office") issued a letter notifying Discover Financial Services (the "Applicant") that it had refused registration of the above mentioned Work. Letter from Registration Specialist, Larisa Pastuchiv, to Aryn Emert (September 6, 2012). In its letter, the Office stated that it could not register the Work because it lacks the authorship necessary to support a copyright claim. Id.
In a letter dated December 5, 2012, you requested that, pursuant to 37 C.F.R. § 202.5(b), the Office reconsider its initial refusal to register the Work. Letter from Thomas Kjellberg to Copyright RAC Division (December 5, 2012) ("First Request"). Upon reviewing the Work in light of the points raised in your letter, the Office concluded that the Work "does not contain a sufficient amount of original and creative artistic or graphic authorship" and again refused registration. Letter from Attorney-Advisor, Stephanie Mason, to Thomas Kjellberg (March 22, 2013).
Finally, in a letter dated June 19, 2013, you requested that, pursuant to 37 C.F.R. § 202.5(c), the Office reconsider for a second time its refusal to register the Work. Letter from Thomas Kjellberg to Copyright R&P Division (June 19, 2013) ("Second Request"). In arguing that the Office improperly refused registration, you claim the Office erroneously analyzed the Work under a "heightened standard of originality." Id. at 1. Specifically, you argue that the Office incorrectly characterized the Work as a "commercial label" and wrongly factored the Work's purported use for commercial and advertising purposes into its determination that the Work is not sufficiently creative to warrant copyright registration. Id. at 1-2. You reference several cases standing for the proposition that otherwise copyrightable works will not be denied copyright simply because they were designed for commercial or advertising purposes. Id. at 1-2 (referencing Kitchens of Sara Lee v. Nifty Foods Corp., 266 F.2d 541 (2d Cir. 1959) and Bleistein v. Donaldson, 188 U.S. 239 (1903), among other cases).
You also maintain that the Work includes at least the minimum amount of creativity required to support registration under the standard for originality set forth in Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991). Second Request at 4. In support of this argument, you claim that the Applicant's careful selection and arrangement of the Works' constituent elements possess a sufficient amount of creative authorship to warrant registration under the Copyright Act. Id. at 4-6. Along with Feist, your argument references several cases in support of the general principle that, to be sufficiently creative to warrant copyright protection, a work need only possess a "modicum of creativity." Id. at 4-6. Your argument also reference several cases that demonstrate works comprised of otherwise unprotectable elements are acceptable for copyright protection if the selection and arrangement of their elements satisfies the requisite level of creative authorship. Id. (referencing Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003), among other cases).
III. DISCUSSION
- A. The Legal Framework
All copyrightable works must qualify as "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a). As used with respect to copyright, the term "original" consists of two components: independent creation and sufficient creativity. See Feist, 499 U.S. at
