Overview
The U.S. Copyright Office Review Board recently granted artist Daniel John Van Such’s application to register the copyright in a three-dimensional sculptural work titled “Trinity Cross.” The decision resulted from Van Such’s second request to reconsider the Copyright Office’s initial refusal to register the work and is notable because reversals of refusals are relatively rare. Indeed, of the Review Board’s 33 published opinions from 2022, only four reversed a refusal to register a work.
The decision’s focus on the sufficiency of creative authorship reflected in “Trinity Cross” suggests the Copyright Office initially determined the work failed to meet the U.S. Copyright Act’s originality requirement. Described by the U.S. Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the seminal case on originality, as “the bedrock principle of copyright” and “the very premise of copyright law,” the Copyright Act’s originality requirement is two-fold: the work must have been “independently created by the author,” and it must possess “at least some minimal degree of creativity.” 499 U.S. 340, 345, 347 (1991). As to the latter requirement, only a “modicum of creativity” is necessary; the threshold is “extremely low.” Id. at 345, 362.
Nonetheless, the Copyright Office has advised that “simple geometric symbols are not eligible for copyright protection.” U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (“Compendium (Third)”) § 906.1 (3d ed. 2021). Accordingly, in its initial review of Van Such’s application, the Copyright Office likely focused on the eight rectangular steel plates and three spheres on a circular base comprising the work in refusing registration.
Upon Van Such’s second request for reconsideration, the Copyright Office Review Board focused on the work as a whole rather than its parts in isolation and ultimately determined it exhibited sufficient copyrightable authorship and could be registered. According to the Copyright Office, if simple geometric symbols are displayed in a manner that goes beyond “a preordained or obvious arrangement,” such a work would be entitled to copyright protection. Compendium (Third) § 906.1. Here, the Review Board stated the rectangular steel plates and spheres comprising “Trinity Cross” were “arranged and welded together at different angles to create a three-dimensional cross-like element that allows light to enter through the parabolic center opening and cast shadows on the sculpture and surrounding ground.” Accordingly, the Review Board determined Van Such’s selection, coordination, and arrangement of those elements to be sufficiently original for copyright protection.
The “Trinity Cross” decision demonstrates the potential benefits of seeking reconsideration of a refusal to register. An applicant’s first request for reconsideration will undergo a review by a Copyright Office staff attorney who was not involved in the initial examination of the application. The second request for reconsideration will undergo a review by the Copyright Office Review Board, which consists of the Register of Copyrights (the director of the Copyright Office), the general counsel of the Copyright Office or their designees, and a third individual designated by the Register. The reconsideration decisions are made de novo, meaning the application is reviewed without deference to the Copyright Office’s prior decisions. The potential for success through reconsideration must be weighed against the benefits of leaving well enough alone. Indeed, an applicant whose registration has been denied can file suit for copyright infringement in federal court. 17 U.S.C. § 411(a). However, while a court might be willing to determine a plaintiff’s work is copyrightable in contradiction of the Copyright Office’s first refusal to register, it may be more likely to accord deference to an affirmance of such refusal issued by the Review Board.
Professionals
Henry Gabathuler
Partner
Tatsuya Adachi
Associate
