New Year, Same Creative Authorship Requirement in US Copyright

As 2019 faded and 2020 rose, the US Copyright Office Review Board affirmed two registration refusals; both concerned the attempted registration of layouts used in digital platforms. One regarded a mobile app to monitor energy usage, the other concerned the form of a web application displaying the various procedures performed by a specific doctor. Both were refused due to lack of creative authorship, thus serving as reminders of the minimal yet genuine requirement of "some creative authorship."

31/12/19 - 24 Hr Energy Dial Design Version 2

The registration of this two-dimensional artwork was applied for by Insight Energy Ventures LLC (IEV), a home energy management solution company operating under the trademark Powerley. The company produces a power platform that allows consumers to monitor their real-time energy usage with the aim of reducing power consumption. The work they seek to register is a page from the graphics user interface of the mobile application for their platform, depicted to the right. 

The segments on the circle indicate the level of energy usage at any given hour of a day: the greater the size and darker the shade of the segment, the higher the energy consumption for that hour. The words "Under Target!" are displayed towards the top, with a bar indicating the current and target usages below. 

The work was initially denied registration due to lack of authorship. On re-consideration, the work was again denied registration due to lack of "sufficient amount of original and creative artistic or graphic authorship." The Copyright Office elaborated: "[a]rranging information graphically, such as using 24 polygons arranged in a circle to represent a day, is an inevitable configuration lacking any creativity.”

31/12/19 - Second Request for Reconsideration

IEV based their second reconsideration request on the contention that “[t]here are many types of information a designer could have selected, and many ways of presenting that information,” noting that the company “devised an appealing and engaging way to present relevant information.” To support this, the company cited University of Colorado Foundation, Inc. v. American Cyanamid, a case in which it was found that a series of figures and tables in an academic article were eligible for copyright protection: the court noted that the data had been selected and arranged neatly in a small space rather than in a "practically inevitable" fashion. 

Search "Atari Breakout" on Google
Images to play this classic

Upon re-consideration, the Copyright Office Review Board reviewed several cases. First, the Board considered Feist Publications, Inc., v. Rural Telephone Service Co., in which the US Supreme Court found "that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection." There, an exhaustive, alphabetical phone book was denied copyright protection. In contrast, the Board referred to Atari Games Corp. v. Oman, in which the game "Breakout" was found to merit copyright protection as an original compilation. 

Noting that IEV contended in their letter for second reconsideration that the company had "devised an appealing and engaging way to present relevant information," the Board cited to Bleistein v. Donaldson Lithographing Co. for the principle that "[t]he attractiveness of a design ... the design’s visual effect or its symbolism ... or the design’s commercial success in the marketplace are not factors in determining whether a design is copyrightable." 

31/12/19 - The Board's Decision

The Board determined that the interface did not merit copyright protection on two different levels. First, the Board noted that the individual elements of the interface are insufficiently creative for it to merit protection. The elements consist of common symbols and shapes, such as a clock segmented by hours and a simple progress bar, as well as simple terms like "target" and "electricity usage." Further, elements like the clock and progress bar are established methods of depicting information, germane to mobile applications.

Second, the interface is not protectable as a whole. A basic layout or template for general or utilitarian information consisting of public domain elements does not merit copyright protection. Thus, the general layout of posters, websites, and apps are all ineligible for copyright protection. This can be distinguished from University of Colorado Foundation, Inc. v. American Cyanamid (cited by the applicant), because that case concerned the arrangement, selection, and coordination of particular data rather than a general interface for all relevant data. Therein lies the the limit: the compilation of particular data. 

3/1/20 - Preference Cards

The American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF) applied to register the next work considered, which consisted of the form of a web application displaying the procedures performed by a given doctor. On subsequent pages, the application would list the doctor's preferred tools and supplies for the chosen procedure. The procedures for each doctor are listed exhaustively and in alphabetical order; there are also blank spaces for users to specify particular inputs, filtering the results. The AAAASF applied to register this work - depicted to the right - as a text claim, not as a work of software. 

The Board cited to the same cases as the decision discussed above, less the Bleistein and American Cyanamid cases. Using a similar framework, the Board affirmed the refusal to register on two levels.

First, the Board noted that the form consists entirely of short words and phrases. As individual elements, these do not merit copyright protection; the names of doctors and procedures are de minimis text elements, not "individually subject to copyright protection."

Second, considering the compilation of these elements as a whole, the Board determined that the work still lacked sufficient creative authorship to warrant copyright protection. Listing the relevant text in an alphabetical fashion does not reflect creative authorship, as noted in the Feist decision. Similarly, an exhaustive list is determined by the facts of the circumstance, not creative authorship in arrangement, selection, or coordination. Finally, blank user fields are not subject to copyright protection in text works, and thus do not bolster the AAAASF's claim of creative authorship.

Conclusion

Although concerning distinct works, these refusals to register affirmed two key principles of creative authorship under US copyright. First, although only a mere "modicum of creativity" is required for copyright protection, there is a de minimis threshold, whereby short words and phrases, common shapes and designs, and basic forms are elements ineligible for copyright protection individually. Second, although such elements may be eligible for copyright protection when arranged, selected, and coordinated with creative authorship, arrangement by standard means, such as alphabetization, or "selection" by provision of an exhaustive list do not constitute creative choices. Decisions that are germane to the work at hand or are dictated by function are not eligible for protection; so says the Copyright Office in two separate decades.