Golden Globe statuette 2018 denied copyright protection in the US

Long time readers of the IPKat may remember a while back, when the Academy logo (featuring the Oscar statue silhouette) was denied copyright registration. The US Copyright Office concluded that the logo was a derivative work of the Oscar statuette and did not possess the requisite authorship to sustain a (self-standing) claim to copyright.

The Hollywood Foreign Press Association faced the same problem last week, when its request to register its 2018 version of Golden Globe statuette was rejected by the US Copyright Office Review Board.

Golden Globe statuette 2018

Background

The Work (referred to in proceedings as the ‘Golden Globe statuette 2018’, pictured) is described as “a sculpture cast in a matte gold material, with the top of the globe wrapped by a cascading filmstrip. The globe is supported by an inverted cone-shaped base comprised of the letters HFPA. The base sits atop a trophy-style stand made of stacked circular and cylindrical shapes of varying sizes, including a gold cup or chalice- shaped base directly below the inverted base. The words “Hollywood Foreign Press Association” are etched into the bottom of the circular stand”.

The Work was a derivative sculpture based on an earlier work (also pictured, below) which, in turn, was a derivative of earlier versions, with the Golden Globe Statuette existing since at least 1952.

An earlier version of the Golden Globe statuette

In January 2019, the Work was denied registration on the basis that it lacked the authorship necessary to support a copyright claim. When requested to reconsider, the US Copyright Office again found that “the Work [did] not contain enough creativity either elementally or as a whole to warrant registration.” This was on the basis that the the work was based on the prior statuette, and the differences between the two sculptures were elements that were not ‘copyrightable’. It was also found that that as a whole, the elements making up the work were “more mechanical and inevitable than creative and original”.

Originality and derivative works

At the outset, the US Copyright Office Review Board noted that a work could only be registered if it was an original work of authorship fixed in any tangible medium of expression (17 U.S.C. §102(a)), with “original” consisting of two components: independent creation and sufficient creativity (Feist). A mere simplistic arrangement of non-protectable elements would not demonstrate the level of creativity necessary to warrant protection - as set out in Satava v Lowry. Protection could be only granted if the elements were numerous enough, their selection and arrangement original enough, and their combination constituted an original work of authorship. The attractiveness of a design, intention of the author, and the design’s visual effect or symbolism would not be factors determining whether a design would be copyrightable (Bleistein v Donaldson Lithographing Co).

The Board also noted that, when it comes to derivative works, such claims will only be possible where the work in question contains new authorship with a sufficient amount of original expression, with the copyright only extending to the material contributed by the author of the original work, distinguished from the preexisting material (17 U.S.C. §103(b) and Compendium (Third) §311.2). It has been recognised that derivative works lacking even a modest degree of originality would not be copyrightable, and originality would not be satisfied by minor variations to the work, or by adding non-copyrightable elements to a prior product (Boyds Collection v Bearington Collection). Ultimately, the addition to the work must be independently protectable for the derivative work to be registered.

The Board’s Decision

A derivative of my earlier work -  (this one blinks) - but
would it warrant copyright protection in the US...?

Credit: me :)

The Board found that the Golden Globe Statuette 2018 did not have the requisite authorship necessary to sustain a claim to copyright. The statuette in question was similar and shared the same overall design of its earlier counterpart, including its gold globe design, gold filmstrip surrounding the globe and a gold inverted cone-shaped base upon which the globe sat, amongst other things.

The only differences noted by the Board were: that the 2018 Statuette was matte gold; that the 2018 statuette’s cone-shaped base was hollow with the letters ‘HFPA’ more apparent; that the base of the statute was gold and cylindrical (not stone and rectangular cube-shaped); and that ‘Hollywood Foreign Press Association’ was etched into the bottom of the 2018 statuette’s base. The Board found that these differences were not found to be enough to qualify for protection in and of themselves. Taken a whole, the new authorship would not distinguish the 2018 statuette from the prior statuette, and certainly not enough to satisfy the creativity requirement.

The Board also highlighted that it had been wrong of the Hollywood Foreign Press Association to focus on the aesthetic value and merit of the award - and how the 2018 statuette was a modern version of the award with a “classic and iconic look”. Since only objective criteria would be used to determine whether the work satisfied the originality requirement, determination on such factors would play no role in whether the work would be found eligible for copyright protection.

Comment

This case serves as a useful reminder that the rights to a derivative work are only for the additions made to the original work, and only where such additions are found to satisfy the relevant originality and authorship requirements. For sure, it was a useful attempt for the Hollywood Foreign Press Association to make so as to prolong the term of protection for the additions made, but one should remember that the term of protection for the copyright in the original work cannot be extended. It may help with copyright claims against copycat or similar variations of the works but, for now at least, having copyright protection vested in the original Golden Globe Statuette should suffice. Nonetheless, it highlights the challenges of modernising existing works and attaining copyright protection in more atypical contexts.