Portal:Review Board of the United States Copyright Office

“ Having found that the Book is not a collective work, the Board cannot accept your argument, pulled from Goodis, that the Work should be protected because it is part of a collective work that has sufficient notice in Peter Benchley’s name to protect all of the components of that collective work. ”

“ Decisions to register a work have no precedential value, and are non-binding upon the Office when examining other applications, and two registration decisions from 40 years ago are not persuasive on this point. ”

“ Under the 1909 Act, notice was very clearly required to “consist either of the word ‘Copyright’, the abbreviation ‘Copr.’, or the symbol ©, accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication." 17 U.S.C. § 19 (1970) . When copies of a work are made available to the public without the required notice, there results a forfeiture of any copyright protection and an injection of the work into the public domain. ”

“ In response to the Office’s citation of relevant case law addressing human authorship, Thaler asserts that “there is no binding authority that prohibits copyright for [computer-generated works] ,” id.; that copyright law already allows non-human entities to be authors under the work made for hire doctrine, id. at 4; and ultimately that the Copyright Office “is currently relying upon non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected.” ”

“ The Review Board of the United States Copyright Office (“Board”) has considered Sands Costner Inc.’s second request for reconsideration of the Registration Program’s refusal to register a two-dimensional artwork claim in the work titled “COINME” (“Work”) . After reviewing the application, deposit copy, and relevant correspondence, along with the arguments in the second requests for reconsideration, the Board affirms the Registration Program’s refusal of registration. ”

“ When there is only one way, or a limited number of ways, to convey the idea that the author seeks to express, the author’s expression cannot be protected under copyright law because that would result in a monopoly over the idea itself and prevent others from using that same idea in other works. ”

“ 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 Logo, simply do not meet the admittedly low threshold. ”

“ The Office emphasized in its refusal that the Office does not have a blanket prohibition against the registration of short works, but reiterated that works which constitute the building blocks of creativity, such as common and familiar shapes, colors, words, and short phrases, do not contain enough creative authorship to support registration. ”

“ Mockingbird Press alleges that the copyrightable authorship is demonstrated by selecting from a large, diverse pool of material and arranging the three works in an original way. The Board disagrees. Selecting, coordinating, and arranging three works does not demonstrate sufficient creativity to be copyrightable. “The Office generally will not register a compilation containing only two or three elements, because the selection is necessarily de minimis.” ”

“ Compendium (Third) § 306 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879) ) ; see also Compendium (Third) § 313.2 (the Office will not register works “produced by a machine or mere mechanical process” that operates “without any creative input or intervention from a human author” because, under the statute, “a work must be created by a human being”) . So Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence. ”

“ After enactment of the 1976 Copyright Act, the second edition of the Compendium was updated to reflect the Office’s understanding that human authorship is required by the law. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 202.02 (b) (2d ed. 1984) (“Compendium (Second) ”) (“The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.”) , available at https://www.copyright.gov/history/comp/compendium-two.pdf. ”

“ Both the Work’s individual elements and the Work as a whole fail to demonstrate copyrightable authorship. The Work consists of a short phrase in typeface and familiar geometric shapes—lines, dotted lines, and circles—that are not protected by copyright. ”

“ In a letter dated June 12, 2020, Caldwell requested that, pursuant to 37 C.F.R. § 202.5 (c) , the Office reconsider for a second time its refusal to register the Work. Second Request. Caldwell made three arguments to support registration of the Work: (1) that as a full sentence, the Work is not subject to the short words and phrases doctrine; (2) that the Work meets the low threshold for creative expression; and (3) that the repeated commercial exploitation of the Work provides some evidence of creativity. ”

“ Congress is not obligated to protect all works that may constitutionally be protected. “ [I] t is generally for Congress,” not the Board, “to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) . The Board must apply the statute enacted by Congress; it cannot second-guess whether a different statutory scheme would better promote the progress of science and useful arts. ↑ In this case, as well as a previous case, the Court suggested that the requirement that an “author” be human is required by the Constitution. ”

“ The Work’s characters are unprotectable typeface with text effects. Those text effects suggest science fiction or futuristic aesthetics commonly used in typeface design. [1] CDP suggests that “it is hard to imagine a book or magazine or newspaper that is printed using such a highly stylized font as the letters found in [the Work,] ” because “ [t] hey would be very difficult to read, and ... there are only 9 of 26 letters included in the subject work [making] it is incomplete for use as a font.” ”

“ The 15 word-epigram, standing alone, presents at most de minimis authorship, and does not present an appreciable amount of creativity beyond the common words and phrases already present in the public consciousness. Words and phrases that enjoy a robust existence in the public consciousness are not sufficiently creative to support copyright protection. ”

“ Lowry, 323 F.3d 805, 813 (9th Cir. 2003) (finding depictions of jellyfish not protected by copyright because material “first expressed by nature are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them”) . These court decisions are reflected in the Office’s guidance in the Compendium, which provides examples of works lacking human authorship such as “a photograph taken by a monkey” and “an application for a song naming the Holy Spirit as the author.” Compendium (Third) § 313.2. ”

“ Finally, CDP argues that works with “minimal creativity” are registerable and that the Work is at least as original other works that the Office registered. Second Request at 4. The Office will not “compare ... deposit copy (ies) with other works that have been previously registered with the Office” for the purpose of granting copyright registration. Compendium (Third) § 309.1. Furthermore, the examples provided by CDP do not contain any typeface and thus are not suitable for comparison. ”

“ An Essay of Man in Revolt (Vintage Books, 1956) (The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.) ; Julian Hall, Do you profit from your employees low self esteem?, BusinessMatters (Sept. 24, 2013) , https://bmmagazine.co.uk/in-business/low-self-esteemers-high-achievers/ ”