Case 1:22-cv-01564-BAH Document 17 Filed 02/07/23 Page 18 of 34
Further, contrary to Plaintiff’s assertion, see Dkt. 16 at 15–16, the Court should give substantial deference to the Office’s judgment regarding copyrightability in recognition of the Office’s extensive expertise. See Esquire, Inc. v. Ringer, 591 F.2d 796, 801–02 (D.C. Cir. 1978) (giving “considerable weight” to the Register’s refusal determination); Custom Chrome, Inc. v. Ringer, No. Civ. A. 93-2634(GK), 1995 WL 405690, at *4 (D.D.C. June 30, 1995) (according “great weight” to the Register’s registration decision). Plaintiff alleges that the Office’s decision is not entitled to deference because the human authorship requirement is not based on a formal regulation. See Dkt. 16 at 15–16. However, the Office was created to oversee copyright registration and “has been concerned with the distinction between copyrightable and noncopyrightable works of art since the Copyright Act of 1870 characterized copyrightable subject matter as works of fine art.” Norris Indus. v. Int’l Tel. & Tel. Corp., 696 F.2d 918, 922 (11th Cir. 1983). For this reason, courts credit the Office’s expertise in interpreting the Act, particularly in the context of registration. See, e.g., Esquire, Inc., 591 F.2d at 801; Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 480 (6th Cir. 2015) (“the Copyright Office’s expertise in identifying and thinking about the difference between art and function surpasses ours”), aff’d on other grounds, 580 U.S. 405 (2017).
Plaintiff’s disagreement with the Office’s conclusion does not establish an abuse of discretion, nor does it indicate that the Office acted arbitrarily or capriciously. See, e.g., Citizens Telecoms. Co. of Minn., LLC v. FCC, 901 F.3d 991, 1010 (8th Cir. 2018) (noting that a plaintiff’s “disagreement is no basis for finding” a federal agency’s interpretation to be “arbitrary and capricious”). The Office’s conclusion that copyright law does not protect non-human creators was a sound and reasoned interpretation of the applicable law.
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