D. Second Request for Reconsideration
In a letter dated September 26, 2005, you requested the Office to reconsider for a second time its refusal to register the copyright claim in the “Best Western Logo” graphic design. Letter from Youssefi to Copyright R&P Division of 09/26/05, at 1. You argue that the Copyright Office has applied a higher standard of copyrightability than the minimal requisite creative spark, and has therefore erroneously refused to register this “highly abstract composition … which is clearly the result of original artistic expression.” Id. You contend that neither the five-sided design nor the “crown” or “W” design are in the public domain or are trivial variations of something in the public domain. Id. at 2–3. You claim that the Copyright Office has denied registration of this work based on its own views regarding artistic merit, evidenced by the fact that the Office has already acknowledged that the legal standard for copyrightability is extremely low, the Best Western Logo consists of multiple elements, these elements are coupled with coloring and arrangement and that a work should be viewed in its entirely. Id. at 4. You point to several other works which the Copyright Office has registered, and argue that the Best Western Logo is much more creative and complex, and thus should also be registered. Id. at 5.
III. DECISION
A. The Legal Framework
- 1. Copyrightable Subject Matter
Graphic designs, including (as you point out) advertisements, commercial prints and labels, are indeed eligible for copyright protection. Letter from Youssefi to Copyright R&P Division of 04/28/05, at 2 (citing U.S. Copyright Office Information Circular No. 40 “Copyright Registration for Works of the Visual Arts,” available at http://www.copyright.gov/circs/circ40.html). See also, 17 U.S.C. § 102(a)(5); Compendium of Copyright Office Practices II, § 502 (1984) ([hereinafter Compendium II]). However, the fact that some graphic designs can qualify for copyright protection does not mean that all graphic designs necessarily will.
All copyrightable works, be they graphic designs or otherwise, must also qualify as “original works of authorship.” 17 U.S.C. § 102(a). As used with respect to copyright, the term “original” consists of two components: independent creation and sufficient creativity. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991). First, the work must have been independently created by the author, i.e., not copied from another work. The Copyright Office accepts at face value your assertion on the subject application for registration that your client Best Western International, Inc. acquired any copyright in and to this work by means of an assignment from Lister Butler Inc. Therefore, the first component of the term “original” is not at issue in the
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