The U.S. Copyright Office’s refusal to register a copyright in a glass sculpture was recently upheld by the federal District Court for the District of Columbia. The district court concluded that the Copyright Office did not abuse its discretion in deciding that the sculpture lacked the necessary level of creativity to warrant copyright protection. However, the district court noted that it was applying an abuse of discretion standard in reviewing the Copyright Office decision and that the sculpture might be found copyrightable in a future case.

In this article, we explore the U.S. Copyright Office’s threshold of creativity for copyrightability alongside an examination of the issue in Munro v. U.S. Copyright Office (Mar. 18, 2024), and implications for those seeking to file an infringement suit.

There are innumerable court decisions stating that the quantity of creative authorship necessary to create a copyrightable work is very low. “[T]he requisite level of creativity is extremely low; even a slight amount 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.” ACT, Inc. v. Worldwide Interactive Network, Inc., 46 F.4th 489, 501 (6th Cir. 2022), quoting Feist Pub., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

Nevertheless, the U.S. Copyright Office maintains a list of things that it will not register as copyrightable. Among them are familiar symbols and designs. As the Copyright Office said in refusing registration of the Munro sculpture, the “features of this design are common and familiar shapes, and … the combination and arrangement of these features do not contain the requisite amount of creativity.” The Copyright Office rejected Munro’s sculpture on this basis.

The district court observed, “[a]s described in the Administrative Record, its structure consists of a clear glass orb sitting above a spike-ended transparent acrylic tubular stem, with a fiber optic light running through the stem and into the glass orb where it is against the orb’s interior curved wall.” The following picture appears in the district court decision:

The Copyright Office’s current list of “examples” of unregistrable works is:

(a) Words 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;

(b) Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing;

(c) Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information;

(d) Works consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.

(e) Typeface as typeface.

37 C.F.R. § 202.1(a)

Nevertheless, the courts do not always follow this Copyright Office regulation. The First Circuit Court of Appeals, for example, has held that the short phrase, “[y]our explanation guides your intervention” had sufficient creative authorship to be protectable and infringed. Greene v. Ablon, 794 F.3d 133, 161 (1st Cir. 2015). Noting the Copyright Office rule on short phrases, the court said, “[h]owever, much turns on the specific short phrases at issue, as not all short phrases will automatically be deemed uncopyrightable.” The court did not apply the Copyright Office rule, instead making a virtue of the shortness of the phrase, holding, “the creativity of the phrase is due in part to its succinct articulation of a complex concept. We agree with the district court that, in context, the phrase is substantial and creative enough to warrant copyright protection.” Id. The phrase actually had been registered, but not by itself; it was part of a book, and the court determined that copying the phrase infringed the copyright in the book. Thus, although the Copyright Office would likely have refused registration of the phrase alone, the phrase alone was, in substance, protected by copyright.

In this vein, the district court in the Munro case, while upholding the Copyright Office’s refusal of registration, did not hold that the door had been closed on copyright for the sculpture. If the sculpture were to be copied, the sculptor could still file suit for infringement and get a court’s independent judgment on the issue of copyrightability. The court said, “The Court concludes by noting that it holds only that the Copyright Office's decision to refuse registration was not an abuse of discretion; it makes no determination about whether the sculpture would warrant copyright protection in an infringement action. In that context, the Court would not be obliged to defer to the Copyright Office but would review the question of copyrightability de novo.” 2024 WL 1156519, at *7.

A copyright registration is not a prerequisite for filing an infringement suit. It is also sufficient that the copyright claimant has submitted the work for registration and been refused. The Copyright Office must receive notice of infringement actions in respect of works that have been refused registration, so that it can come into the case and oppose the claims. 17 U.S.C. §411(a) provides:

… In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The courts, however, have the last say on whether a work is copyrightable.