(Was Re: Aphorisms and Copyright)
On 8/27/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> The requirements for copyright are set out in the statute, with no
> provision for the Office to alter them. In contrast to, say, the Patent
> Act, which has a lot of detail about the role of the PTO in determining
> the patentability of a particular invention, the statutory role of the CO
> is pretty narrow. They're "administrative functions and duties" under
> Title 17 (s. 701(a)). The CO is required to register the work after it
> determines it's subject to copyright (s. 410(a))-- not make a decision
> about what that subject is;
>
[snip]
>
> The Copyright Office is primarily an office of record, not an office
> that grants rights.
A few cases to mull over. The first is John Muller & Company, Inc. v. New York Arrows Soccer Team, Inc., 802 F.2d 989 (8th Cir. 1986).
In Muller plaintiff designed a logo for the defendant soccer team. Muller attempted to coopyright the logo but was twice refused by the CO because the CO determined the logo lacked the required minimum amount of creativity. Muller sued, and the CO intervened. The district court found found that the CO had not abused its discretion in its determination and granted defendants partial summary judgment.
The 8th Circuit, in a per curiam decision, affirmed, agreeing that the Register's decisions are subject to judicial review only under an abuse of discretion standard.
Id. at at 990.
The other case is The Homer Laughlin China Co. v. Ralph Oman, Register of Copyrights, 22 U.S.P.Q.2D (BNA) 1074 (D.D.C. 1991). In that case plaintiff sought to copyright a china design pattern. The CO refused saying that "familiar shapes and designs are not copyrightable." Again, the court concluded that the issue was creativity and that the CO had not abused its discretion.
The court, though, went on to say that plaintiff could obtain a "full judicial review" in an infringement action. This principle was confirmed in another decision, OddzOn Products, Inc. v. Ralph Oman, Register of Copyrights, 924 F.2d 346 (D.C. Cir. 1991). That case, too, after affirming the lower court's decision that the CO was correct in refusing registration, said:
"We underscore, however, that neither our decision, nor that of the district court, in any way precludes a determination, in an infringement action, that the KOOSH ball is indeed copyrightable."
Id. at 347.
We are left with a chain of procedural and substantive results. Joe Author tries to register his work. The CO refuses to register based on 17 U.S.C. sec. 410(b) (uncopyrightable subject matter or other reasons). Joe fights the CO, but the CO stands firm. Joe then has two choices. He can appeal (file suit in district court) the CO's decision, in which case the courts will show the CO a fair amount of deference (based on 17 U.S.C. sec. 701(d) and 5 U.S.C. sec. 706(2)(A)). Or, in the alternative, even though there's no registration, he can wait for an infringement and sue the defendant, in which case the courts will give him a "full judicial review," although Joe will still have to overcome the presumption created by the CO that his work is not copyrightable. See Atari Games Corp. v. Oman, 888 F.2d 878, 887 (D.C. Cir. 1989) (Silberman, J., concurring).
All in all, I think a conclusion that the CO is purely administrative is overstating the case.
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