Vondran Legal® - Copyright Registration requires "originality" but what does that really mean?  Call us if you are dealing with a copyright dispute at (877) 276-5084.

Introduction

Generally, creative works of authorship (including things like jewelry, sculptures, boat hulls, and architectural plans and photos) can be copyright registered with the United States Copyright Office ("USCO") but the copyright office can also deny or reject registration if they feel your Work of authorship lacks "originality" - but who is to make that decision and based on what criteria?  That is the subject of this blog.

Case study dealing with jewelry originality

I was scrolling through a lawsuit where someone sued RedPoints alleging illegal takedown of their products and I found a reference to an application for jewelry infringement, to my surprise, which was rejected from being copyright registered.  Here is a picture of the ring at issue.

The copyright office rejected this ring which I thought was fairly creative as I have never seen a "wave ring" before.  I also reviewed the letter issued by the copyright office which provides some insight on what they are looking as far as originality before they will register a copyright.  Here is the letter.

Here is the second page

Copyright Office Compendium

Here is the copyright registration guidebook used by the USCO to determine and guide them in interpreting various aspects of copyright law.  Here is what it says about ORIGINALITY REQUIREMENT:

The Originality Requirement Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991) (citation omitted). “To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possess “at least some minimal degree of creativity.” Id. at 345 (citations omitted). These requirements are discussed in Sections 308.1 and 308.2 below. 

313.4  Works That Do Not Satisfy the Originality Requirement

As discussed in Section 308, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). To qualify as an “original” work of authorship, the work must be independently created and must contain some minimal amount of creativity. The U.S. Copyright Office will not register works that do not satisfy these requirements.

308.1  Independent Creation

The term “independent creation” means that the author created the work without copying from other works. See Feist, 499 U.S. at 345. The copyright law protects “those components of a work that are original to the author,” but “originality” does not require “novelty.” Id. at 345, 348. A work may satisfy the independent creation requirement “even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” 

For example, if two authors created works that are similar or even identical, each work could be registered provided that the authors did not copy expression from each other. As a general rule, the Office will accept the applicant's representation that the work was independently created by the author(s) named in the application, unless that statement is implausible or is contradicted by information provided elsewhere in the registration materials or in the Office's records or by information that is known to the registration specialist. If the specialist determines that the work was not independently created, he or she may communicate with the applicant or may refuse to register the claim. For representative examples of works that do not satisfy the independent creation requirement, see Section 313.4(A) below.

308.2 Creativity A work of authorship must possess “some minimal degree of creativity” to sustain a copyright claim. Feist, 499 U.S. at 358, 362 (citation omitted).

“[T]he requisite level of creativity is extremely low.” Even a “slight amount” of creative expression will suffice. “The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious it might be.'” Id. at 346 (citation omitted).

An author's expression does not need to “be presented in an innovative or surprising way,” but it “cannot be so mechanical or routine as to require no creativity whatsoever.” A work that it is “entirely typical,” “garden-variety,” or “devoid of even the slightest traces of creativity” does not satisfy the originality requirement. Feist, 499 U.S. at 362. “[T]here is nothing remotely creative” about a work that merely reflects “an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.” Id. at 363.

Likewise, a work “does not possess the minimal creative spark required by the Copyright Act” if the author's expression is “obvious” or “practically inevitable.” Id. at 363. Although the creativity standard is low, it is not limitless. Id. at 362. “There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. Such works are incapable of sustaining a valid copyright.” Id. at 359 (citations omitted). If the Office determines that a work possesses sufficient creativity, it will register the claim and issue a certificate of registration. Conversely, if the Office determines that the work does not possess some minimal degree of creativity, it will refuse registration. For more information on works that do not satisfy the creativity requirement, see Sections 313.4(A) through 313.4(K) below.

313.4(A)

Mere Copies

A work that is a mere copy of another work of authorship is not copyrightable. The Office cannot register a work that has been merely copied from another work of authorship without any additional original authorship. See L. Batlin & Son, 536 F.2d at 490 (“one who has slavishly or mechanically copied from others may not claim to be an author”); Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 195 (S.D.N.Y. 1999) (“exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original”). As a general rule, the registration specialist will not search the Office's records or conduct independent research to determine whether the work was created by the author(s) named in the application because the existence of similar or identical works will not preclude a claim in a work that was independently created. 

However, if the applicant asserts a claim in a work that is unusually similar to another work of authorship that is known to the specialist, he or she may communicate with the applicant. If the specialist determines that the author copied or incorporated another work of authorship, he or she may ask the applicant to exclude the preexisting work from the claim or may refuse registration if the author did not contribute a sufficient amount of additional original authorship to the work.

Examples:

• An exact reproduction of the Mona Lisa that cannot be distinguished from the original

• Photocopying, scanning, or digitizing a literary work (ex. a photocopy or scan of a photograph). 

• Dubbing a sound recording from a preexisting recording.

• A toy model that is an exact replica of an automobile, airplane, train, or other useful article where no creative expression has been added to the existing design. 

314(B)

313.4(B) De Minimis Authorship

The term “de minimis” comes from the legal principle “de minimis non curat lex,” which means “the law does not take notice of very small or trifling matters.” As the Supreme Court stated, “copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.” Feist, 499 U.S. at 363.

Works that contain no expression or only a de minimis amount of original expression are not copyrightable and cannot be registered with the U.S. Copyright Office.

Examples:

Literary Works:

• Substituting the pronouns “she” and “her” for “he” and “his” in a preexisting work of authorship.

• Combining a coined term with a few short phrases that define the term.

• A Venn diagram consisting of three overlapping circles containing the names of various personality disorders and a few words and short phrases that describe the symptoms of each condition.

• A standard form contract for a real estate transaction requesting factual information from the buyer and containing standard legal language for the release of the seller's interest in the property.

• Editing that merely consists of spelling and grammatical corrections.

Works of the Performing Arts:

• A synopsis consisting of a single sentence.

• A musical phrase consisting of three notes.

• A sound recording consisting of a single tone

Works of the Visual Arts: 

• Solitaire rings, simple diamond stud earrings, simple hoop earrings, and other jewelry designs that contain only a trivial amount of authorship.

• Touching-up an aged or damaged photograph in order to restore it to its original condition, without adding an appreciable amount of authorship to the original image.

• A public domain photograph of Winston Churchill combined with the word “Commitment” and the quotation “Never, never, never give up.”

• An outline map of South Carolina with a blue heart in the center of the design featuring the white crescent moon and white palmetto tree from the state flag.

Specific categories of literary works, works of the performing arts, and works of the visual arts that contain a de minimis amount of authorship are discussed in Chapters 700, 800, and 900.

313.4(C)

Words and Short Phrases

Words and short phrases, such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship. See 37 C.F.R. § 202.1(a).

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. See Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959) (concluding that the Office's regulation barring the registration of short phrases is “a fair summary of the law”).

Examples:

• The name of an individual (including pseudonyms, pen names, or stage names).

• The name of a business or organization.

• The name of a band or performing group.

• The name of a product or service.

• A domain name or URL (e.g., www.copyright.gov).

• The title or subtitle of a work of authorship.

• The name of a character.

• Catchwords, catchphrases, mottoes, slogans, or other short expressions.

For the same reasons, short musical phrases consisting of only a few musical notes standing alone are not copyrightable and cannot be registered with the U.S. Copyright Office, even if the phrase is novel or distinctive. See 37 C.F.R. § 202.1(a).

Examples:

• Clock chimes.

• “Mi do re sol, sol re mi do.”

• A trademark consisting of three musical notes.

Similarly, individual numbers, letters, sounds, and short phrases consisting of such elements are not copyrightable, because they do not contain sufficient creative authorship. The Office maintains various databases, indexes, catalogs, and other records that contain titles of works that have been registered with the Office. These titles are part of the public record, but the titles themselves are not subject to copyright protection.

313.4(D)

Works Consisting Entirely of Information That Is Common Property

The U.S. Copyright Office cannot register works consisting entirely of information that is common property because such works contain no original authorship. 37 C.F.R. § 202.1(d). Examples of common property include, without limitation, standard calendars, schedules of sporting events, and lists or tables taken from public documents or other common sources.

For the same reasons, the Office cannot register a claim in common sayings, diatonic and chromatic musical scales, or common chord progressions.

313.4(F)

Mere Listing of Ingredients or Contents

A mere listing of ingredients or contents is not copyrightable and cannot be registered with the U.S. Copyright Office. 37 C.F.R. § 202.1(a).

Examples:

• A list of ingredients for a recipe.

• A list of components for a formula, compound, prescription, or the like.

• A list of musical tracks contained in a compact disc.

• A product label that merely lists the ingredients for the product, merely describes the product, or merely describes the contents of the product packaging.

The Office may register a work that explains how to perform a particular activity, such as a cookbook or user manual, provided that the work contains a sufficient amount of text, photographs, artwork, or other copyrightable expression. However, the registration does not extend to any list of ingredients or contents that may be included in the work.

 See Publications International v. Meredith Corp., 88 F.3d 473, 480 (7th Cir. 1996) (“We do not view the functional listing of ingredients as original within the meaning of the Copyright Act.”); see also Policy Decision on Copyrightability of Digitized Typefaces, 53 Fed. Reg. 38,110, 38,112 (Sept. 29, 1988) (explaining that “the explanation and illustration of recipes is copyrightable even though the end result – the food product – is not”).

313.4(I)

Scènes à Faire

 The copyright law does not protect stock characters, settings, or events that are common to a particular subject matter or medium because they are commonplace and lack originality.

For example, the copyright for a work about the Hindenburg would not cover elements that are “indispensable, or at least standard, in the treatment of” that topic, such as scenes that take place in a German beer hall or characters who utter common greetings of the period. See Hoehling, 618 F.2d at 979.

The copyright for a work about a police station in an urban slum would not cover elements that necessarily result from the choice of that setting, such as scenes depicting drunks, prostitutes, vermin, and derelict cars, or stock themes commonly linked to the genre of police fiction, such as foot chases or the “familiar figure of the Irish cop.” See Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986).

Likewise, the fact “that treasure might be hidden in a cave inhabited by snakes, that fire might be used to repel the snake, that birds might frighten an intruder in the jungle, and that a weary traveler might seek solace in a tavern . . . [are] simply too general to be protectable.” See Zambito v. Paramount Pictures Corp., 613 F. Supp. 1107, 1112 (E.D.N.Y 1985). 

While scènes à faire cannot be registered by themselves, a work of authorship that contains standard expressions or stock characters, settings, or events may be registered, provided that the work as a whole contains a sufficient amount of original expression.

___________________

Attorney Steve® Tip:  This raises serious questions when you are being sued by a copyright Plaintiff, EVEN IF THEY PROFESS TO HAVE A REGISTERED COPYRIGHT.  For example, Strike 3 Holdings is an adult film company that routinely seeks five-figure settlements from clients who share their adult pornography films through the torrent networks.  But, in reality, what are there movies really about?  

1. Two people in a room with a bed (common setting)
2. Funky music playing
3. Two or more people engaged in sexual acts (sex is a functional act, why would that be protected)?
4. A simplified plot twist that results in "clothes off" in a matter of minutes then routine sex acts that most all pornography companies shoot the exact same scenes.

What is original about this?  Can one adult porn company sue another for copyright infringement "hey, you are doing the same sex acts by a pool as we are" (doesn't seem to make sense).  In fact, I bring this up because this was a jury instruction raised in a Florida Strike 3 case that apparently settled on the eve of trial.  Were they concerned about a potential ruling that would cripple their torrent recovery business?

Where is the "original work of authorship" in a porno movie?  "Okay, there's the bed, now go have sex?"

The same could be said for some photographs I see people suing for.  Example, the picture of a hammer.  Think about this when you are dealing with an infringement case.

Contact a Federal Copyright Infringement Law Firm

Copyright law can be complicated.  It can take a year to learn and a lifetime to master.  Call us if you are facing an infringement matter (ex. photo infringement, DMCA takedowns, music piracy, boxing piracy, got a Strike Three ISP subpoena or other related copyright, trademark, trade secrets, or right of publicity case. 

Call us at (877) 276-5084 or fill out our contact form.