Page:Fruit bunch (USCO Review Board, 2022).pdf/2

James Mitchell, Esq. Mitchell IP Law, PLLC register the claim, finding that it "lacks the authorship necessary to support a copyright claim." Initial Letter Refusing Registration from U.S. Copyright Office to James Mitchell at 1 (Dec. 8, 2020).

In a letter dated December 17, 2020, Graceland requested that the Office reconsider its initial refusal to register the Work. Letter from James Mitchell to U.S. Copyright Office (Dec. 17, 2020) ("First Request"). After reviewing the Work in light of the points raised in the First Request, the Office re-evaluated the claims and again concluded that the Work "does not contain a sufficient amount of original and creative artistic or graphic authorship to support a copyright registration." Refusal of First Request for Reconsideration from U.S. Copyright Office to James Mitchell (May 4, 2021) ("Refusal of First Request").

In a letter dated June 14, 2021, Graceland requested that, pursuant to 37 C.F.R. § 202.5(c), the Office reconsider for a second time its refusal to register the Work. Letter from James Mitchell to U.S. Copyright Office (June 14, 2021) ("Second Request"). In that letter, Graceland argued that originality can be gleaned from the coordination of the colored shapes, specifically, the placement of "different colored disks" and the arrangement of "diamond shapes pointing inwardly towards the same central disk and point [sic] outwardly away from each other and away from the arrangement of disks." Id. at 2.

III.DISCUSSION

After carefully examining the Work and applying the relevant legal standards, the Board finds that the Work does not contain the requisite authorship necessary to sustain a claim to copyright.

A work may be registered if it qualifies as an "original work[] of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a). In this context, the term "original" consists of two components: independent creation and sufficient creativity. See ''Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc.'', 499 U.S. 340, 345 (1991). First, the work must have been independently created by the author, i.e., not copied from another work. Id. Second, the work must possess sufficient creativity. Id. Only a modicum of creativity is necessary, but the Supreme Court has ruled that some works—such as the alphabetized telephone directory at issue in Feist—fail to meet even this low threshold. Id. The Court observed that "[a]s a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity." Id. at 363. It further found that there can be no copyright in a work in which "the creative spark is utterly lacking or so trivial as to be virtually nonexistent." Id. at 359.

The Office's regulations implement the longstanding requirement of originality set forth in the Copyright Act. See, e.g., 37 C.F.R. § 202.1(a) (prohibiting registration of "[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; [and] mere variations of typographic ornamentation, lettering or coloring"); id. § 202.10(a) (stating "to be acceptable as a pictorial, graphic, or sculptural work, the work must embody some creative authorship in its delineation or form"). Some combinations of common or standard design elements may contain sufficient creativity with respect to how they are juxtaposed or arranged to support a copyright claim. Nevertheless, not every combination or arrangement will be