Thanks to higher resolution image, American Airlines has eventually managed to register its logo with the US Copyright Office

American Airlines first applied to register its Flight Symbol (the Work) as a copyrighted work with the US Copyright Office back in 2016. This is a two-dimensional artwork, composed of a small number of elements (one blue and red element conforming to the contours of an aircraft tail and one white and grey triangular element evoking the head of an eagle), with multiple variations in shading: 

The American Airlines Flight Symbol was initially denied registration in October 2016, on consideration that it lacked the authorship necessary to support a copyright claim. American Airlines unsuccessfully requested the Office to reconsider its decision on two further occasions. 

However, the airline did not give up. 

In fall 2018, the US Copyright Review Board elected to reassess its conclusion on the applicant’s second request for reconsideration of the Work. American Airlines managed to provide a higher-quality, larger-format image of the Work that represented additional details that had not been clear from the previous submissions:

The Review Board's assessment 

Pursuant to Section 906(1) of the Compendium of US Copyright Office Practices the Review Board reiterated that copyright law does not protect basic geometric shapes. Nonetheless, according to Feist Publications Inc v Rural Telephone Services (499 US 340 (1991)) (Feist) a work that combines non-protectable elements into a larger design may be registered if the overall design is sufficiently creative. Therefore, the US Copyright Office may register a Work comprising merely of geometric shapes and the author’s use of those shapes results in a work that – as a whole – is sufficiently creative.

Furthermore, according to Section 906(1) of the Compendium, simple shapes, when selected or combined in a distinctive manner indicating some ingenuity, have been accorded copyright protection both by the Register and courts. For instance, the US Copyright Office would register a wrapping paper design that consists of circles, triangles, and stars arranged in an unusual pattern with each element portrayed in a different colour, but would not register a picture consisting merely of a purple background and evenly spaced white circles. The reason for this is that it goes beyond the mere display of a few geometric shapes in a preordained or obvious arrangement.

In Prince Group, Inc v MTS Products (967 F. Supp. 121 (1997) (Prince), the District Court for the Southern District of New York found that a polka dot fabric design was sufficiently creative, where dots were “irregularly shaped,” placed at varying distances and “‘shaded,’ that is, there [was] a crescent of white around half of the perimeter of each of the dots which [was] different from the standard” polka dot.

In light of the above, the Review Board considered that the Work modifies and combines these elements in a way that provides for the minimum amount of creativity necessary for copyright protection: the aircraft tail element is oriented on an angle (rather than the parallel orientation of a trapezoid or rectangle), and curved. The bird-head element hovers just below the centre of the aircraft tail element. Importantly, and more apparent in the identifying material provided for this review, is the three-dimensional appearance that causes the bird-head element to appear to be above and separated from the aircraft tail.

Similar to the polka dot fabric design in Prince, the Work reveals simple shapes that have been slightly transformed by shading. In particular, the axial colour gradients progress at four points from dark blue to royal blue, from burgundy to red, and from grey to white. The shading is more sharply detailed under the bird-head shape than at the edges of the blue and red portions, further heightening the illusion of depth. Additionally, whitespace cuts through the centre of the design to define and elevate the bird-head shape from the rest of the design. Ultimately the design illustrates a creative choice in the shading of the elements in the overall Work, in connection with the combination of various familiar, but slightly adjusted shapes. 

In Feist, the US Supreme Court reasoned that copyright protection is available so long as there is at least “some creative spark, ‘no matter how crude, humble or obvious’ it might be. The requisite level of creativity is extremely low and even a slight amount will suffice. Thus, considered as a whole, the Work would meet the Feist threshold. The Review Board stated that this assessment varied from lower instances due the fact that the applicant had provided a better higher-quality and larger-format image of the Work. 

As regard to the scope of protection, the Review Board reasoned that the overall design of the Work is still quite simple, predominated by its two simple elements (the most common depiction of an aircraft tail and a familiar abstraction of a bird’s head) and familiar colours (the American flag’s red, white, and blue). Accordingly, the resulting protection is thin, protecting only the Work’s original and creative elements against only virtually identical copying. In other words, none of the Work’s individual elements, such as the colours or shapes, are sufficient on their own. The Work can only receive protection for its overall specific appearance. This conclusion excludes any consideration as to the public reception of the Work. The symbolic meaning or impression that conveyed are irrelevant.

Comment 

The path to registration of the American Airlines logo has been a complex one, and the decision itself acknowledges the ‘anomalous’ procedural history thereof. In any case, it is also indicative of the challenges facing copyright registration of logos, as a number of cases demonstrates: for instance, not long time ago, The IPKat reported on the refusal to register the Vodafone Speech mark in the US.