Page:Darden v. Peters - 2007.djvu/10

286 408; see Feist, 499 U.S. at 361, 111 S.Ct. 1282.

Darden’s argument notwithstanding, it is not a foregone conclusion that courts owe no deference whatsoever to the Register’s decision in the context of an infringement action under section 411(a). Indeed, courts are split on this issue. Compare John Muller & Co. v. New York Arrows Soccer Team, 802 F.2d 989, 990 (8th Cir. 1986) (applying abuse of discretion standard to infringement claim); ''Norris Indus. v. I.T. & T. Corp., 696 F.2d 918, 922 (11th Cir.1983) (same), with Carol Barnhart, Inc. v Economy Cover Corp., 773 F.2d 411, 414 (2d Cir.1985) (according no deference to Register’s copyrightability conclusion); OddzOn Prods.'', 924 F.2d at 347–50 (same). We need not weigh in on this issue, however, as Darden brought this action against the Register under the APA seeking review of the denial of registration for insufficient originality in his works. Even if no deference is due to the Register’s decision by courts adjudicating infringement actions under section 411(a), we must apply the standards set forth in the APA. To do otherwise would be to ignore the clear and unambiguous language of the statute, which we cannot do. Accordingly, we review the decision to register Darden’s works for abuse of discretion.

Darden next contends that even if the Register’s decision is reviewed under a discretionary standard, it must be set aside because his Maps and APPRAISERSdotCOM works met the minimum standard of originality required for a copyrightable claim. Again, we disagree.

The Copyright Act affords copyright protection for “original works of authorship fixed in any tangible medium of expression,” including “pictoral, graphic, and sculptural works.” 17 U.S.C. § 102(a)(5). A work must be original to be copyrightable; indeed, the “sine qua non of copyright is originality.” Feist, 499 U.S. at 845, 111 S.Ct. 1282. To be “original,” the work in question must have been “independently created by the author (as opposed to copied from other works),” and it must “possess[ ] at least some minimal degree of creativity.” Id. The threshold level of creativity required for copyrightability is low such that the “vast majority of works make the grade quite easily, as they possess some creative spark.” Id. Nevertheless, “[t]here remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Id. at 359, 111 S.Ct. 1282. The Copyright Office established a regulation providing examples of the types of works that fall into the category of works that lack a minimum level of creativity and do not qualify for copyright protection, including “[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” 37 C.F.R. § 202.1(a).

The originality requirement applies to derivative works as well. See 17 U.S.C. § 101 (defining derivative work as a work “based upon one or more preexisting works”). The author’s copyright protection in a “derivative work only extends to the elements that he has added to the work.” Dam Things from Denmark v. Russ Berrie & Co., 290 F.3d 548, 563 (3d Cir.2002). And, the author’s contributions must satisfy the originality requirement. See Feist, 499 U.S. at 359, 111 S.Ct. 1282.

We first consider the refusal of the Copyright Office to register Darden’s