US Copyright Office Review Board allows registration of Abercrombie & Fitch’s Store Front Sculpture

In a decision issued in June 2020, the US Copyright Office Review Board (CORB) reversed the earlier findings of the US Copyright Office concerning an application to register Abercrombie & Fitch’s Store Front Sculpture. The CORB found that this work exhibits copyrightable authorship.

The three-dimensional sculpture consists of the letters A and F, the ampersand symbol, and the abbreviation “Co.” encased in a backlit glass circle. The circle is offset and surrounded by a dark metal square:

Pursuant to Section 202.1 of the US Code of Federal Regulations and Section 313.3 of the Compendium of US Copyright Office Practices, works not subject to copyright include words and short phrases and familiar symbols or designs. However, in light of the seminal US Supreme Court judgment in Feist Publications Inc v Rural Telephone Services (499 US 340 (1991)) (Feist), works that combine geometric shapes, letters, and other non-protectable elements into a larger design may be registered if the overall design is sufficiently creative. In particular, the US Supreme Court in Feist considered that creative ways of selecting, coordinating, or arranging uncopyrightable material will trigger copyright.

Furthermore, in Atari Games Corp. v. Oman, 888 F.2d 878, 883 (D.C. Cir. 1989), the US Court of Appeals (District of Columbia Circuit) considered that simple shapes, when selected or combined in a distinctive manner indicating some ingenuity, have been accorded copyright protection both by the Register and in court. For instance, the choice of location, orientation, and dimensions of glass panes in a work has showed “far more than a trivial amount of intellectual labour and artistic expression” and the earlier use of “geometric shapes like squares, triangles, and trapezoids has not precluded copyright protection”.

In the present case, the Store Front Sculpture combines multiple geometric shapes – a circle and a square – with letters, symbols, and lighting elements created from several different materials into a sculpture that exhibits creative choices in the selection, positioning, and arrangement of elements in the overall work. In line with Feist, copyright protection is available so long as there is at least some creative spark, ‘no matter how crude, humble or obvious’ it might be. Therefore, considered as a whole, the work satisfies the originality requirement.

The CORB pointed out that the protection only relates to the work as a whole, and does not extend individually to any of the standard and common elements depicted in the work, such as a circle, rectangle, “A,” “F,” “&,” or “Co.,” the choice of materials, or the lighting elements. It is the overall combination of those elements into the work that makes it protectable.

The decision is interesting because, on the one hand, it serves to outline the boundaries of US copyright protection in relation to combinations of shapes, symbols, and abbreviations which are otherwise not eligible for copyright protection per se. For example, the CORB denied copyright registration to the UEFA Starball logo and the Vodaphone Speechmark logo (commented on The IPKat here and here). In those decisions, registration was refused on grounds that the arrangement at issue was not sufficiently original. On the other hand, the present decision also shows how thin the line between protectable and non-protectable expression might be…