Custom Chrome v. Ringer

Does anyone have any views on the case of Custom Chrome v. Ringer, 35 U.S.P.Q. 2d 1714 (D.C.D.C, June 30, 1995)? In this case, the plaintiff sought to register copyright in 23 sculpted motorcycle parts. The Copyright Office determined that the work of authorship was not conceptually separable from the functional elements of the work and denied the registration. The plaintiff contended that the Office had applied an incorrect standard for conceptual separability, and sued the Office under the Administrative Procedure Act, as specified by 17 USC 701(d). The district court granted the Office's motion for summary judgment.

What I found interesting here is the level of deference that the court afforded the Register's decision. The court applied the Chevron doctrine, from Chevron USA, Inc. v. N.R.D.C., 467 U.S. 837 (1984). Chevron stands for the proposition that, if a statute is silent or ambiguous with respect to a specific issue, the construction given to that statute by an agency responsible for the administration of the statute will be applied as long as the agency's interpretation is reasonable. Regulations that interpret the statute are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute or otherwise violate the law.

Applying Chevron, the district court concluded that it is the job of the Office and not the courts to determine the appropriate test for determining what test should be applied to determine whether a work of authorship is conceptually separate from a functional work. It therefore declined to consider whether the plaintiff's works were copyrightable.

Questions:

1. Is the Copyright Office charged with the interpretation of the Copyright Act to determine copyrightability of a work, apart from as a preliminary determination as to whether the work should be registered? In other words, is the Chevron doctrine even applicable to the Copyright Office examination process?
2. The Copyright Office's practices with regard to conceptual separability come from its internal document, the Compendium (II) of Copyright Office Practices. Is a practice documented in an internal document subject to the same deference as a regulation promulgated under 17 U.S.C. 702?
3. The Copyright Office uses the test of whether artistic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. I note that some circuits use a different test; for example, the Second Circuit examines whether the design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences (from Brandir v. Cascade Pacific Lumber, 834 F.2d 1142 (2d Cir. 1987)). If the Custom Chrome court is correct, are the individual circuits' tests inoperative? If not, does it make sense to use one standard to determine copyright subject matter in the registration phase, and a different standard during litigation? (Interestingly, this was just answered in the negative in the patent world just last year, in In re Donaldson, 16 F.3d 1189 (Fed. Cir. 1994); prior to that case, the Patent and Trademark Office had contended that 35 U.S.C. 112(6) in the Patent Act governed only construction of a patent claim during litigation, but not during examination of the patent.)

It's interesting to note that Copyright Reform Act of 1993 would have made it clear that a Copyright Office examination would not have been afforded such deference. Although that act was best known for its removal of the tie between registration and statutory damages and attorney's fees, section 5 of that act would have amended Title 17 so that registration could be refused only if "the Register of Copyrights determines in accordance with this title, that there is no reasonable possibility that a court would hold the work ... to be copyrightable subject matter. The House Report (H.R. Rep. No. 288) was explicit in the effect of this provision: "The Copyright Office is thus directed to defer to the courts, and not vice versa." Of course, the CRA did not pass, and one hesitates to rely on the legislative history of a bill that did not become law.

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Terry Carroll       |            Go Cleveland Indians:
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