Lane Powell PC
Refusing Registration from U.S. Copyright Office to Suzanne Lukas-Werner at 1 (Apr. 16, 2020).
In an April 28, 2020 letter, Sands Costner requested that the Office reconsider its initial refusal to register the Work. Letter from Steven B. Winters, Lane Powell PC, to U.S. Copyright Office (Apr. 28, 2020) (“First Request”). After reviewing the Work in light of the points raised in the First Request, the Office re-evaluated the claims and again concluded that it “does not contain a sufficient amount of original and creative authorship to support copyright registration.” Refusal of First Request for Reconsideration from U.S. Copyright Office to Steven B. Winters at 2 (Oct. 8, 2020). The Office concluded that the Work was a combination of unprotectable elements that consisted only of common geometric shapes, words and short phrases, and mere variations in coloring combined in an uncreative and expected way. Id. at 2–3.
In a letter dated January 8, 2021, Sands Costner requested that, pursuant to 37 C.F.R. § 202.5(c), the Office reconsider for a second time its refusal to register the Work. Sands Costner argued that the Office applied “an erroneously high standard of creativity” rather than the “creative spark” standard set forth in Feist Publications, Inc., v. Rural Telephone Service Co. Letter from Steven B. Winters, Lane Powell PC, to U.S. Copyright Office at 5 (Jan. 8, 2021) (“Second Request”); see Feist, 499 U.S. 340, 345 (1991). Further, Sands Costner argued that “the Work contain[ed] creativity as to color choice and color arrangement, creativity as to shape of letters and the graphical elements of the arc and coin, and the interplay of the graphical elements with one another.” Second Request at 3. Lastly, Sands Costner argued that the Office failed to apply the same standard of creativity compared to other works the Office has previously registered. Id. at 3–4.
III. DISCUSSION
After carefully examining the Work and considering the arguments made in the First and Second Requests, the Board finds that the Work’s individual elements fail to exhibit copyrightable authorship. The Office has consistently found that words and short phrases, mere variations of typography or coloration, and standard geometric shapes all fail to contain the sufficient amount of original creative expression. See, e.g., 37 C.F.R. § 202.1(a) (prohibiting registration of “[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; [as well as] mere variations of typographic ornamentation, lettering[,] or coloring”). The dot connected to the “m” and the curved arch depicted over the “i” are both common shapes ineligible of copyright protection. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 906.1 (3d ed. 2021) (“Compendium (Third)”) (“The Copyright Act does not protect common geometric shapes, either in two-dimensional or three-dimensional form.”). The remaining elements consists of green and blue coloring and a business name, slightly stylized in font and arranged without spacing to combine two words: “coin” and “me.” Again, these individual elements are ineligible for copyright protection because they fail to demonstrate creative and original authorship. See Compendium (Third) §§ 906.4 (“[T]ypeface, typefont, lettering, calligraphy, and typographic ornamentation are not registrable. These elements are mere variations of uncopyrightable letters or words….”), 313.4(C) (“The U.S. Copyright Office cannot register individual words or brief combinations of words, even if the word or short phrase is novel or distinctive or lends itself to a play on words.”), 313.4(K) (stating
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