Not Every Designing Is Protected Past Times Copyright, Fifty-Fifty If Creating It Involved Many Choices

The Review Board of the U.S. Copyright Office (the Board) of late reviewed a bit asking past times T.W.N. Industries (TWN) for reconsideration of the Registration Program’s previous denial to register 2 of its patterns. On Oct 25, 2017, the Board 1 time again denied registration to 1 of the patterns, Gold Wood, but granted registration to the Staggered Carbon Pattern.

TWN’s patterns are designed to live on used past times applying them to an object, such equally an bird interior for example.

The Board described the 2 patterns equally such:

“Staggered Carbon is a geometric pattern consisting of repeating rectangular bands of dissimilar sizes, shapes, together with textures, arranged inward a woven pattern. The bands are 2 distinct gray-colored patterns. One ring is night grayness amongst vertical lines, together with the other ring is low-cal grayness amongst darker grayness lines.

Gold Wood is a two-dimensional graphic blueprint consisting of a repeating pattern of striated gilded together with cream vertical lines, made to resemble a low-cal woods grain. “

The U.S. Copyright Office had originally denied inward September 2016 copyright registration to both patterns, informing TWN that they lacked the minimum total of creative pictorial, graphic or sculptural authorship necessary for a piece of occupation of visual arts to live on protected past times copyright. 

Deemed Worthy of Copyright Protection 

TMW together with then asked the Copyright Office to reconsider its refusal, together with  explained the creative procedure used for both patterns, which both necessitates the run of upward to 3 layers inside Photoshop, together with were hand-drawn using dissimilar brushes together with strokes.

The Copyright Office 1 time again denied registration, equally “the elongated rectangular bands” which made upward the Staggered Carbon pattern “are a mutual together with familiar shape” together with the lines making upward the Gold Wood pattern were too “a mutual together with familiar shape” together with so could non live on protected past times copyright. The Copyright Office too flora that the Gold Wood's features were non "combined inward whatever way that differentiates them from their basic shape together with blueprint components," together with were a "simple configuration" non protectable past times copyright equally "the piece of occupation equally a whole consists of vertical lines inward shades of gilded together with cream.”

TMW asked the Copyright Office to reconsider its refusals for a bit time, equally allowed past times 37 C.F.R. § 202.5 (c), claiming that both plant were master copy plenty to live on protected past times copyright, which bears the question: what is originality nether U.S. copyright law?

What is originality nether U.S. copyright law?

Under 17 U.S.C. § 102(a), U.S. copyright protects exclusively "original plant of authorship." The threshold for a piece of occupation to live on master copy is, however, quite low. As explained past times the Supreme Court inward Feist Publications, Inc. v. Rural Telephone Service Co., Inc. , “[t]he sine qua non of copyright is originality. To qualify for copyright protection, a piece of occupation must live on master copy to the author. … Original, equally the term is used inward copyright, agency exclusively that the piece of occupation was independently created past times the writer (as opposed to copied from other works), together with that it possesses at to the lowest degree exactly about minimal marking of creativity.”

Thus 2 cumulative atmospheric condition are necessary for a piece of occupation to live on protected past times copyright:

-          It must convey been independently created past times the writer and

-          It must receive at to the lowest degree exactly about minimal marking of inventiveness

A combination of unoriginal elements tin live on master copy plenty to live on protected past times copyright

The Board noted that [s]ome combinations of mutual or criterion blueprint elements may comprise sufficient inventiveness amongst honor to how they are juxtaposed or arranged to back upward a copyright… [but that] non every combination or organisation volition live on sufficient to consider this test.”

It quoted the 2003 Satawa v. Lowry 9^th Circuit case, where the courtroom explained that, spell

“a combination of unprotectable elements may qualify for copyright protection… non … whatever combination of unprotectable elements automatically qualifies for copyright protection. Our instance police suggests, together with nosotros concur today, that a combination of unprotectable elements is eligible for copyright protection exclusively if those elements are numerous plenty together with their selection together with organisation master copy plenty that their combination constitutes an master copy piece of occupation of authorship.”

The Board too quoted § 906.1 of the Compendium of U.S. Copyright Office Practices on Common Geometric Shapes, which explains that “the U.S. Copyright Office volition non register a piece of occupation that only consists of mutual geometric shapes unless the author’s run of those shapes results inward a piece of occupation that, equally a whole, is sufficiently creative.”

Staggered Carbon is master copy plenty to live on protected past times copyright

The Board flora that “the combination of elements inward Staggered Carbon - namely the dissimilar textures on the bands, equally good equally their arrangements - exhibits copyrightable authorship,” together with was master copy plenty to live on protected, quoting Feist, where the Supreme Court held that exclusively a ‘modicum’ of inventiveness is necessary for a piece of occupation to live on original.

However, exclusively the “specific combination of textures” created past times TWN are protected past times copyright, non the “standard designs together with other unoriginal elements.”

Gold Wood is non master copy plenty to live on protected past times copyright

But fifty-fifty though the Board recognized that Gold Wood had been independently created, it was non creative plenty to live on protected past times copyright, equally “it consists of simple, child variations on mutual shapes arranged inward an obvious together with uniform manner.” The Board explained farther that Gold Wood “is made upward of exclusively a rattling few elements (monochromatic lines inward a few shades of gold” arranged inward an unoriginal mode (densely together with amongst exclusively child together with repeating variations throughout the pattern).” As explained inward § 313.4(J) of the Compendium of U.S. Copyright Office Practices, “a piece of occupation consisting of a unproblematic combination of a few familiar symbols or designs amongst child linear or spatial variations, either inward two-dimensional or three-dimensional

form, cannot live on registered.”

TWN argued that it had to brand “specific choices from endless alternatives of shapes” to exercise Gold Wood. But the Board explained that “it is non the possibility of choices that determines copyrightability, but whether the resulting facial expression contains copyrightable authorship.”