Page:Historic Block Logo (USCO Review Board, 2022).pdf/3

Christopher M. Verdini, Esq. K&L Gates LLP "[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; [and] mere variations of typographic ornamentation, lettering or coloring." 37 C.F.R. § 202.1 (a); see also Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959) (describing these regulations as "a fair summary of the law"). When a work consists of only unprotectable elements, it must combine or arrange those elements in a sufficiently creative way to meet the requirements of the statute. See Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (combination of unprotectable elements is protected "only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship").

Applying these legal standards, the Board finds that the Work does not contain the requisite authorship necessary to sustain a claim to copyright. Both the Work's individual elements and the Work as a whole fail to demonstrate copyrightable authorship.

The Work consists of stylized, or mere typographic ornamentations of, two letter "W"s and one letter "F," all in black coloring. The letters are not copyrightable, as they are mere variations of typographic ornamentation or lettering. 37 C.F.R. § 202.1(a); § 313.4(J) (3d ed. 2021) ("") (explicitly listing "letters" as familiar symbols and designs that "cannot be registered"). The stylized portions of the "W"s that combine to form the "F" do not alter the fact that letters are not copyrightable. Letters are the building blocks of expression and cannot be protected by copyright law "regardless of how novel and creative the shape and form of the typeface characters may be." § 906.4; see also § 313.3(D) (The copyright law does not protect typeface or mere variations of typographic ornamentation or lettering."); Eltra Corp. v. Ringer, 579 F.2d 294, 298 (4th Cir. 1978) (noting Congress has consistently refused copyright protection to typeface). While in "some very limited cases" graphical works largely comprising lettering may be copyrightable, such as when they form "original pictorial art that forms the entire body or shape of the typeface characters" including "add-on[s] to the beginning and/or ending of the characters," the Work does not meet this test.  § 906.4. The additional element of black coloring is mere coloration, which is also not protected by copyright. 37 C.F.R. § 202.1(a);  § 313.4(K), 906.3 ("Mere coloration or mere variations in coloring alone are not eligible for copyright protection."). Therefore, none of the Work's individual elements are protectable by copyright.

Viewing the Work as a whole, the selection, coordination, and arrangement of these unprotectable elements do not rise to the level of creativity necessary for copyright registration. While a work consisting entirely of unprotectable elements may be registered if "those elements have been selected, coordinated, and/or arranged in a sufficiently creative manner," the Work does not exhibit such creativity. § 905; see also Satava, 323 F.3d at 811. The Work is simply two black letter "W"s nestled atop each other with protrusions on the top tight side of each "W" to form the appearance of the letter "F." Nestling two letter "W"s atop the other is a "mere simplistic arrangement" that evidences de minimis creativity and does not meet the requirements for copyright registration. Satava, 323 F.3d at 811; see Feist, 499 U.S. at 346. The Work is a "simple combination of a few typefonts, letterforms, or typeface designs with minor linear or spatial variations" that the Office "cannot register." § 313.3(D); see also Coach, Inc. v. Peters, 386 F. Supp.2d 495 (S.D.N.Y. 2005), (holding that