analysis set forth herein. Second, the work must possess sufficient creativity. For the reasons set forth below, the Board has determined that the subject graphic design fails to embody the requisite amount of creativity, and therefore it is not entitled to copyright registration.
- 2. The Creativity Threshold
In determining whether a work embodies a sufficient amount of creativity to sustain a copyright claim, the Board adheres to the standard set forth in Feist, where the Supreme Court held that only a modicum of creativity is nevessary to support a copyright. As you noted, the Court explained that the “requisite level of creativity is extremely low; even a slight amount will suffice.” Letter from Youssefi to Copyright R&P Division of 04/28/05, at 1 (citing Feist, 499 U.S. at 345); see also, Letter from Youssefi to Copyright R&P Division of 09/26/05, at 1 (noting the “minimal creative spark” nevessary for copyright registration).
However, the Feist Court also ruled that some works (such as the work at issue in that case) fail to meet the standard. The Court observed that “[a]s a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity,” 499 U.S. at 363, and that there can be no copyright in a work in which “the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Id. at 359; see also, 37 C.F.R. § 202.10(a) (“In order to be acceptable as a pictorial, graphic, or sculptural work, the work must embody some creative authorship in its delineation or form.”); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.01(B) (2002) (“[T]here remains a narrow area where admittedly independent efforts are deemed too trivial or insignificant to support a copyright.”).
Even prior to the Feist Court’s decision, the Office recognized the modest, but existent, requisite level of creativity necessary to sustain a copyright claim. Compendium II states, “Works that lack even a certain minimum amount of original authorship are not copyrightable.” Compendium II, § 202.02(a). With respect to pictorial, graphic and sculptural works, Compendium II states that a “certain minimal amount of original creative authorship is essential for registration in Class VA or in any other class.” Compendium II, § 503.02(a).
In implementing this threshold, the Office and courts have consistently found that standard designs, figures and geometric shapes, such as a pentagon, are not sufficiently creative to sustain a copyright claim. Compendium II, § 503.02(a) (“[R]egistration cannot be based upon the simplicity of standard ornamentation … . Similarly, it is not possible to copyright common geometric figures or shapes … .”); id. § 202.02(j) (“Familiar symbols or designs … or coloring, are not copyrightable.”). See also, id. § 503.03(b) and 37 C.F.R. § 202.1(a).
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