Photo Credit: iStock/Dmytro Kvasnetskyy
While creative works are protected under copyright law the moment they are created, copyright owners can enjoy several additional benefits if they timely register their works with the United States Copyright Office (USCO).
By timely registering with the Copyright Office, copyright owners can:
- Bring an infringement lawsuit;
- Enjoy a presumption of validity, subject to timing constraints;
- Be Eligible to receive statutory damages and attorneys’ fees in a lawsuit;
- Create a public record of copyright ownership and protection; and
- Satisfy the Library of Congress’ deposit requirements.
But what should a copyright owner do if the Copyright Office denies the copyright registration?
The Appeals Process and the Role of the USCO Review Board
A copyright registration applicant is permitted to appeal the refusal of a copyright registration twice. The first refusal, or First Request for Reconsideration, is reviewed by a USCO staff attorney in the Registration Program Office who did not participate in the initial examination of the claim.
If a copyright applicant wishes to appeal the staff attorney’s registration decision, she can appeal to the USCO Review Board (the “Board”). The Board hears the second, or final, appeals of refusal of copyright registration. The Board is comprised of the Register of Copyrights, the USCO General Counsel (or designees), and a third member determined by the Register.
The Board bases its decision on the copyright applicant’s written appeal and the administrative record, while also taking prior correspondence into account. Appeals can be expensive and have a low chance of success: the fee for a first appeal is $350 per claim, while the fee for a second appeal is $700 per claim. And, for example, in 2019 only 7 out of 33 second requests for reconsideration were overturned.
CD Projeckt’s Copyright Registration Application for the Cyberpunk 2077 Logo
On August 16, 2018, CD Projeckt (CDP) filed a copyright registration application for the Cyberpunk 2077 logo. A Copyright Office Registration Specialist examined the application and refused to register the work for lack of sufficient authorship.
CDP submitted its first request for reconsideration on September 12, 2019, asserting that the logo did meet the low bar for creativity required for copyright protection, such as through the contrast of colors for the logo and how the letters and numbers are arranged.
The Office denied CDP’s first request for reconsideration, determining that the logo was not eligible for copyright protection as its component elements, and the work as a whole, did not have the authorship necessary for copyright registration.
CDP submitted a second request for reconsideration on September 12, 2019. On May 27, 2020, The Board reviewed CDP’s request and affirmed the Registration Program’s denial of registration.
The Board’s Reasoning
For a work to be registered with the Copyright Office, it must be an “original work of authorship fixed in any tangible medium of expression.” Here, the Board focused on the “originality” aspect of copyrightability, which includes a requirement of creative authorship.
In its decision, the Board reviewed CD Projekt’s second request for reconsideration and determined that the Cyberpunk 2077 logo was not eligible for copyright protection because it did not demonstrate copyrightable authorship as it consisted of a short phrase, typeface with text effects, and familiar geometric shapes – elements that are not protected under copyright law.
What about how the Cyberpunk 2077 logo combined these elements? While a copyrightable work can contain elements that are not protected under copyright law, the Board explained that a “mere simplistic arrangement of non-protectable elements” will not meet the threshold for creativity for copyright registration.
While the Cyberpunk 2077 logo ultimately could not be registered with the Copyright Office, CD Projekt can still try to register the logo as a trademark.
The Difference Between Copyright and Trademark Protection
While logos can be protected by copyright law, those that consist of a short phrase, a typeface potentially with some effects, and familiar geometric shapes are not protectable under copyright law. But, while copyright protection may not be appropriate for logos, logo owners can use trademark law to protect their symbols.
Trademark law specifically protects a “word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Like with copyright protection, trademark protection can exist even without a registration, but registering a trademark offers additional legal benefits.
Looking to learn more about the different types of intellectual property protection? Check out the What Is the Difference Between Copyright, Patent, and Trademark page in our FAQ section.