US Copyright Office Review Board denies UEFA copyright protection over Starball logo

Although the World Cup is over, this Kat can’t keep his mind off thinking about MORE football … or soccer (as Americans call it).

In 2016, the Union des Associations Européennes de Footbal (UEFA) filed an application with the US Copyright Office to have the famous Starball logo registered as a copyright work of two-dimensional visual art. The Starball logo is composed of a round ball, made up of black stars, with white polygons in the negative space between the stars. The shapes are arranged into a circular space, with the outer stars curved to follow the circumference (see below).

The US Copyright Office rejected the application. UEFA thus appealed the decision to the US Copyright Office Review Board (CORB), which however confirmed the prior assessment in a decision issued earlier this summer.

UEFA set forward a number of claims in its Second Request for Reconsideration for Refusal to Register. First, it claimed that the work was sufficiently creative (original) due to the logo’s composition, with a combination of at least 19 elements. Secondly, it claimed that the forms and shapes that compose the mark are not commonplace. Thirdly, UEFA submitted that the illusion produced by the logo is highly important and the placement of the elements is not linear, with the individual elements having to be placed with more than just minor spatial variations. Finally, UEFA argued that the Office’s assessment was not in line with US Supreme Court judgment in Feist Publications Inc v Rural Telephone Services (499 US 340 (1991)) (Feist).

The legal framework and the CORB 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. In this context, the term “original” has two components: independent creation and sufficient creativity (Feist). The work must have been independently created by the author, i.e. not copied from another work. In addition, the work must possess sufficient creativity. Only a limited amount of creativity is necessary, but works like the alphabetized telephone directory at issue in Feist would fail to even reach this low threshold.

Some combinations of common or standard design elements may display sufficient creativity with regard to how such elements are disposed or arranged in a work. Nonetheless, not every combination or arrangement would be necessarily original.

A determination of originality of a work, together with the combination of standard design elements (such as stars) would depend on whether the selection, coordination, or arrangement is done in such a way as to result in a protectable creation. A simple arrangement of non-protectable elements does not demonstrate the level of creativity necessary to warrant protection.

In light of the foregoing, the CORB found that the logo was not sufficiently original to sustain a claim for copyright.

In relation to the first claim submitted by UEFA, it established that the shapes composing the Starball logo, similarly to their combination, were insufficiently creative in light of Section 906 (1) of the Compendium of US Copyright Office Practices.

Just a random illustration of 
this Kat scoring in "soccer"

The CORB then went on to state that registration of the logo was also not permissible in light of Section 905 of the Compendium of US Copyright Office Practice. According to Section 905, merely bringing together only a few standard forms or shapes with minor linear or spatial variations does not exhibit a sufficient amount of creative expression. According to UEFA, this standard did not apply because the Starball consists of more than a “few” shapes. The CORB did not accept this argument on the basis that Section 905 mandates that “few” be interpreted in light of works that consist entirely of unoriginal elements.  Showing common shapes into the circumference of a circle is not original.

UEFA had also claimed that the stars and polygons are positioned to create the illusion of a three-dimensional sphere.  The CORB dismissed this argument on the basis of Section 310 (3) of US Copyright Office Practice. This provision sets out that in order to determine eligibility for copyright protection, the Copyright Office would only need to consider the objective appearance of the Starball and not also the “symbolic meaning or impression” that a work may evoke in the mind of a viewer.

UEFA may have lost 0 – 2 to the Copyright Office. However, UEFA has successfully registered the Starball logo as a trade mark in the US. Can and will this saga continue to the finals? Nothing is impossible … as Croatia demonstrated in the 2018 World Cup in Russia.