Wikilegal/Copyright threshold of originality for logos
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A logo can be protected against unwanted use by others both under copyright and trademark law. The two legal regimes are entirely separate and serve rather different purposes. Generally, trademark law is used to protect the association between a logo and products or services, while copyright protects the artistic work expressed in the logo. This post examines the required minimal standards for copyright protection of logos. It does not address the requirements to register or otherwise protect a logo under trademark law. As discussed below, the availability of copyright protection for logos varies greatly between different jurisdictions.
Copyrightability under American law
Under American law, copyright protection requires the logo to pass a certain threshold of originality. This requirement includes a minimal quantum of personal creativity. Within the group of eligible objects of protection, logos fall under the category of “pictorial works” and are part of a conceptual sub-category called “prints and labels used for articles of merchandise.” Generally, there is no special copyright threshold of originality for logos--they are subject to the same originality standard as other artistic works. With that said, there have been strands of American law which imply otherwise.
Certain types of work are individually not eligible for copyright, including words and short phrases, titles, slogans, familiar symbols or designs, or mere variations of typographic ornamentation, lettering or coloring.  However, when these individual design features are combined, they can then become copyright eligible, but “only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
Some courts focus heavily on the number of design elements. The courts never give a “magic number” of copyrightable elements, though for the Ninth Circuit Court of Appeals it is some number more than six: the combination of four furniture pieces didn’t create a work that was creative enough for copyrightability. The combination of six elements wasn’t enough either: a glass jellyfish sculpture that had six features that weren’t protectable on their own (“the selection of the clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereo-typed jellyfish form”) still didn’t meet the minimum creativity threshold when the features were combined. This number is not a hard and fast test, but the decisions of other courts align with this thinking: the 4th Circuit found that a designer’s map did not reach the creative threshold for copyrightability when the designer added “color, shading, and labels using standard fonts and shapes” to preexisting maps. The 8th Circuit found that “four angled lines which form an arrow and the word "Arrows" in cursive script below the arrow” did not meet the minimum standard of creativity.
Some courts focus less on the number of elements, and more on the effort and the distinction of the design, without counting elements. The combinations of text, arrangement of text, artwork, lines, typefaces, and colors found on greeting cards or magazine covers can be copyrightable, even when none of the elements are copyrightable on their own.
Text is generally only copyrightable when combined with shapes. Mere “ideas” are not copyrightable. Also, mere words and phrases in the sense of word marks hardly ever qualify for copyright, such as the phrase “Where Words Come Alive,” or a bottle label without any pictures or “other noteworthy features.” But if the text is combined with some basic shapes, it may qualify for copyright protection. So for example, the “Omega Globe Design” that is engraved on the underside of Omega watches was assumed to be copyrighted by the Ninth Circuit US Court of Appeals. Likewise, the U.S. Copyright Office has approved a copyright registration for a car dealership logo that included the words ”Car Credit City” and a number of shapes. The U.S. Copyright Office has also approved a copyright registration of a framed “no soliciting” sign when it contained a stick figure. However, an image with text is not automatically copyrightable. The word “Arrows” with an arrow wasn’t copyrightable, because it was obvious to use that picture with that word and required no creativity.
Illustrations, moreover, easily meet the threshold of originality under U.S. copyright law. The U.S. Copyright Office has therefore approved the copyright registration of a computer icon with snowflakes. It similarly approved a logo for a Hawaiian political group, which contained very basic shapes.
Overall, there is no one test for the copyright threshold: the issue of copyright in works that are made up of simple shapes, words, or colors. The courts tend to rule more liberally in favor of copyright ineligibility than the Copyright Office, so it’s unlikely that any pattern will be universal across all situations. Furthermore, interpretations regarding the creative minimum might vary based on where you are within the United States and even within one region might not be treated exactly the same way every time.
Copyrightability under European law
European law has generally left it to member states to decide the threshold of originality. Although some have low originality standards similar to American law, some do not.
German jurisprudence applies a particularly high threshold of creativity to works of commercial art. The reasoning behind this high standard is that such works can already be protected as Industrial Designs and trademarks under certain circumstances. Thus, a higher threshold of creativity must be met to make them protected by copyright as well.
In order to be protected, the work must "clearly surmount the average design." All elements "which are based on known, technically provided or generally accepted examples if there is no artistic achievement in their combination among each other or together with new elements" cannot be protected. For example, the “ARD” broadcasting company logo did not meet the standard of creativity under German copyright law, neither did a ‘Walking Eye’ sketch.
Accordingly, simple company logos are not copyrighted under German law, especially those using standard typography with basic graphic features.
- 17 USC 102(a)(1).
- This category is rooted in Sec. 5(k) Copyright Act of 1909 as amended by 53 Stat. 1142 (1939), and reaffirmed for the post-1975 Copyright Act world in Sen. Rep. No. 94-473, p. 53.
- Sadhu Singh Hamdad Trust v. Ajit Newspaper Adver., Mktg. and Commc’ns, Inc., 503 F. Supp 2d 577 (E.D.N.Y. 2007). Also Bleistein v. Donaldson Lithographing Co., 23 S.Ct. 298, 250 (1903).
- Nimmer on Copyright, § 2.08[G].
- 37 CFR 202.1.
- Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. Cal. 2003).
- Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 323 F.3d 1140.
- Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. Cal. 2003).
- Darden v. Peters, 488 F.3d 277, 287 (4th Cir. N.C. 2007).
- John Muller & Co. v. New York Arrows Soccer Team, Inc., 802 F.2d 989 (8th Cir. Mo. 1986).
- Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1109 (9th Cir. Cal. 1970)
- Reader's Digest Assoc. v. Conservative Digest, Inc., 821 F.2d 800, 806 (D.C. Cir. 1987).
- See Arthur v. Am. Broad. Cos., Inc., 633 F.Supp. 146, 148 (S.D.N.Y., 1985).
- Nimmer on Copyright, § 2.08[G]. See Moody v. Morris, 608 F. Supp 2d 575, 579 (S.D.N.Y. 2009); Ets-Holin v. Skyy Spirits, Inc., 225 F.3d 1068, 1080 n.13 (9th Cir. 2000).
- Moody v. Morris, 608 F. Supp 2d 575, 579 (S.D.N.Y. 2009).
- Ets-Holin v. Skyy Spirits, Inc., 225 F.3d 1068, 1080 n.13 (9th Cir. 2000).
- Omega S.A., v. Costco Wholesale Corp., 541 F.3d 982, 983.
- U.S. Copyright Office Registration no. VAu000635117.
- U.S. Copyright Office Registration no. VA0001766451.
- See Royal Printex v. Unicolors 2009 U.S. Dist. LEXIS 60375 (C.D. Cal. July 8, 2009), discussing John Muller & Co. v. New York Arrows Soccer Team, Inc., 802 F.2d 989 (8th Cir. Mo. 1986).
- U.S. Copyright Office Registration no. VA0001638936; see Andrew Beckerman-Rodau, The Problem with Intellectual Property Rights: Subject Matter Expansion, 13 Yale J.L. & Tech. 35 (2010), available at http://ssrn.com/abstract=1754781.
- U.S. Copyright Office Registration no. VAu001042236.
- In order to be protected by German copyright law (Urheberrecht), a commercial logo - just as any other possible object of protection - must be a "work of literature, science and art" as set out in sec. 1 German Copyright Act (Urheberrechtsgesetz, UrhG). Sec. 2(1) UrhG provides a non-exhaustive list of seven 'classes' of "protected works" (note the qualifier, ‘protected’). In order to be recognized as a protected work, the object of protection must, inter alia, pass the so-called "threshold of creativity" (Schöpfungshöhe). This is derived from the facts that the law apparently distinguishes between "protected" and "non-protected works" in sec. 2(1) and that sec. 2(2) UrhG states that, "works in the scope of this law are only personal intellectual creations". Accordingly, German law takes a different approach to determining the originality threshold, as compared to English law, where a rather different "sweat of the brow" doctrine is applied. In order to determine the necessary level of creativity for a commercial logo, one must find the applicable group of works in which they fit under sec. 2(1) UrhG. Logos fall under "works of applied art" in sec. 2(1)(4). A sub-category of these works of applied art are then works of "commercial art" (Gebrauchsgrafik).
- Bundesverfassungsgericht ([German] Federal Constitutional Court), Jan 26, 2005, http://www.bverfg.de/entscheidungen/rk20050126_1bvr157102.html GRUR 2005, 410] - “Walking Eye” (Laufendes Auge); Bundesgerichtshof ([German] Federal Court of Justice), June 2, 1995, GRUR 1995, 581 - “Silver Thistle” (Silberdistel); see Artur-Axel Bullinger, Praxiskommentar zum Urheberrecht, § 2 n. 97 (Artur-Axel Wandtke & Windfried Bullinger eds., C.H. Beck, 3rd ed. 2009).
- At the other extreme, the threshold of creativity necessary for protection of the class of scientific illustrations as set out in sec. 2(1)(7) UrhG is extremely low so that basically any visualisation of a scientific or educational concept is protected by copyright in Germany.
- Gernot Schulze, Urheberrechtsgesetz, § 2 n. 160 (Thomas Dreier & Gernot Schulze, eds., 4th ed., C.H. Beck 2013).
- Oberlandesgericht Köln (Cologne Higher Regional Court), Sep 19, 1986, GRUR 1986, 889.