US Copyright Office Review Board denies registration of ‘Vodafone Speechmark’
Readers might recall last month’s post concerning the US Copyright Office Review Board’s refusal to register UEFA’s Starball logo. This work was denied registration because it was not sufficiently original to sustain a claim for copyright].
On similar grounds, the Review Board has now delivered yet another blow – this time against Vodafone.
Background
Vodafone applied for registration of the Speechmark logo as a copyrighted work with the US Copyright Office back in 2016. The work is a two-dimensional artwork consisting of a red quotation mark with light shading, placed within a circle in various shades of grey and white. The quotation mark is placed in the centre within a red square:
The Speechmark logo was initially denied registration in 2017. The Office found that the work did not contain a sufficient amount of original and creative graphic or artistic authorship to support a copyright registration. Furthermore, the circle and the apostrophe (the Office took the view that it was an apostrophe instead of a quotation mark) that make up the design of the logo are both common and familiar shapes. Finally, the Office found that the mere colouration does not afford copyright protection.
Vodafone subsequently appealed the decision. In support of its claim, it submitted that the symbol within the circle is not an apostrophe but a “ballooned droplet,” and is readily distinguishable from an apostrophe, both in the stylization of its curvature and its orientation. Even if the symbol were a variation on an apostrophe – Vodafone claimed – the work would still be eligible for registration because symbols and typographic elements may be protected where a work as a whole contains expressive elements. It added that use of colouration contributes to the work’s originality, because “Vodafone’s use of a vibrant red, together with a white and grey shading background, when taken together and when the work is considered as a whole, create an expressive work worthy of copyright protection”.
The Review Board’s assessment
Pursuant to Section 102a of the US Copyright Act (USC) a work may be registered if it qualifies as an original work of authorship fixed in any tangible medium of expression. Following the US Supreme Court judgment in Feist Publications Inc v Rural Telephone Services (499 US 340 (1991)) (Feist) the term “original” entails two components: independent creation and sufficient creativity. This means that a work must have been independently created by the author and must possess sufficient creativity.
In Feist the US Supreme Court observed that copyright protects only those constituent elements of a work that possess more than a de minimis amount of creativity. However, not every combination or arrangement will be sufficient to satisfy this test. A determination of whether copyright subsists in a work is dependent on the selection, coordination, and/or arrangement of all the elements. A mere simplistic arrangement of non-protectable elements does not demonstrate the level of creativity necessary to afford copyright protection.
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| An attempt to click on the quotation mark symbol despite paw being too big. Maybe an apostrophe will just do the job instead... |
The Review Board then considered Section 906 (1) of the Compendium of US Copyright Office Practices which sets out that:
the U.S. Copyright Office will not register a work that merely consists of common geometric shapes unless the author’s use of those shapes results in a work that, as a whole, is sufficiently creative.
It concluded that the work fails the creativity test – whether one considers the elements individually or as a whole. According to the Board, even if the work essentially depicts a single quotation mark within a circle, the individual elements do not satisfy the standard of originality because they comprise familiar symbols and designs, and common geometric shapes. Despite the fact that Vodafone had initially claimed that the sign is a quotation mark – the Board argued that this does not change the scope of registrability because quotation marks have multiple orientations. Accordingly, it does not matter if the mark depicts an apostrophe or a quotation mark. The Board then drew this analogy to the later contested ballooned droplet. Even if a balloon droplet was depicted it would be instantly recognizable as a quotation mark. This being the case, the work in question could not be registered in accordance with Section 313.4(J) of the Compendium that states that symbols typically found on a keyboard, such as asterisks, ampersands, and the like cannot afford registration.
Because Section 906 (1) of the Compendium sets out that common geometric shapes cannot be registered, the circle within which the quotation mark is located, and the square within which both are centred, can afford registrability either. The same applies for the colouring and shading of the work. Although “an original combination or arrangement of colours” can result in a work being registered, mere colouring or variations thereof are not sufficient for copyright protection (Section 313.4(K) of the Compendium). This was held to be the case in the work at hand.
