have been purposefully placed in this arrangement, the arrangement itself does not embody sufficient creativity. See Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“It is true, of course, that a combination of unprotectible elements may qualify for copyright protection. (citations omitted) But it is not true that any combination of unprotectible elements automatically qualifies for copyright protection. A combination of unprotectible elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.) (emphasis in the original). The totality of this simplistic combination of public domain and non-protectible elements, even with the “crown/W” and text superimposed on the outlined pentagon, is simply not sufficiently creative to support a copyright registration.
You argue that the Examining Division erroneously applied a “minor variation” standard with respect to public domain shapes, rather than a “trivial variation” standard. Letter from Youssefi to Copyright R&P Division of 09/20/05, at 2. Regardless of the verbiage, the proposition is consistent; standard shapes and designs are not copyrightable in and of themselves, and something more than a negligible or trivial variation to that shape or design is necessary to transform it into copyrightable subject matter. This is not to say that the variation has to be novel or unique; it simply must embody a distinguishable amount of creativity from the standard representation. The Board rejects your argument that any change resulting from artistic effort necessarily qualifies as a sufficient variation to warrant copyright protection. See Letter from Youssefi to Copyright R&P Division of 09/26/05, at 2–3. The process by which a work or variation is created, be it due to a thunderclap or shaky hand, as in the examples you provide, or due just to pure inspiration, is irrelevant to copyrightability. Only the resulting work is evaluated, regardless how it came to be. Moreover, the Supreme Court made clear in Feist that effort or “sweat of the brow” itself, regardless of the amount, is simply not an element to be considered in determining the copyrightability of a work. Feist, 499 U.S. at 353–54.
You also claim that the Examining Division has denied registration of this work based on its own views regarding artistic merit, evidenced by the fact that it has already acknowledged that the legal standard for copyrightability is extremely low, the Best Wester Logo consists of multiple elements, these elements are coupled with coloring and arrangement and that a work should be viewed in its entirety. Letter from Youssefi to Copyright R&P Division of 09/26/05, at 4. However, you have overlooked several other important points that the Examining Division also made. First, the Office agrees that the artistic merit or aesthetic appeal of a work, or lack thereof, has no bearing on the copyrightability of that work and has consistently said so. See Letter from Sukites to Youssefi of 02/04/05, at 1; Letter from Giroux to Youssefi of 08/09/05, at 1. Second, although we also agree that the legal standard for copyrightability is extremely low as enunciated by the Supreme Court, it is not non-existent. Copyright is not available for every work simply because someone authored it. It is available only for works embodying creative authorship. Some works, such as the Best Western
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