Are automobile interior designs eligible for copyright protection? Last month, we wrote about the Copyright Office Review Board’s (CORB’s) allowance of the registration of a three-dimensional pattern for an automotive floor mat. Does this mean that every little feature of your car is now eligible for copyright protection?
Not according to CORB, which recently released its opinion in the matter of Novem Car Interiors.
The works in question are four two-dimensional pattern swatches for the interior of luxury cars, the copyright in which Novem GmbH applied to register in 2015. Two of the swatches consist of what is essentially a herringbone pattern, one silver and the other black. A third design features black rectangles, and the fourth is a smooth wood veneer with translucent stripes.
A Copyright Office registration specialist rejected Novem’s applications on the ground that they did not “contain a minimum amount of creative pictorial, graphic or sculptural authorship.” On Novem’s request, the Copyright Office reevaluated the applications in 2017, and again rejected them, concluding that “standard designs, figures and geometric shapes” such as these were not sufficiently creative to merit copyright protection.
Novem appealed to CORB pursuant to 37 C.F.R. § 202.5(c). CORB affirmed.
The Thin Dull Line
The basis for the affirmance was the originality requirement found in 17 U.S.C. § 102, which has been interpreted to consist of two elements: (1) that the work is independently created; and (2) that the work is sufficiently creative.
Here, the battle was over the second element. Sufficient creativity is a low bar: anything more than a de minimis quantum will do. But in policing the boundary between sufficient and de minimis creativity (I call it the “thin dull line”), the Copyright Office is particularly wary of items like names, titles, familiar symbols, and slight variations on typical ornamentation. That’s basically what Novem’s designs were: “familiar symbols or designs” like lines, boxes and stripes that were no more than “minor variations on commons shapes.”
Selection and Arrangement
Although common shapes are not copyrightable, a combination of common shapes and/or other unprotectable elements might be, but only if the selection and arrangement of those elements is sufficiently creative. The Ninth Circuit has stated that such combinations are protectable “only if [the non-protectable] elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
Section 906.1 of the Compendium of U.S. Copyright Office Practices offers an illustrated example of this distinction. Say you take a bunch of white circles (common shapes) and space them out evenly (a common arrangement) on a purple background (a common color). This design is not protectable because everything about it is too common. Now take the same unprotectable circles, vary their size and color, add a few other basic shapes, and make the pattern less predictable. The individual elements of the design are still not copyrightable, but your minimally creative combination may be.
Here, CORB found that the combination of elements in Novem’s auto interior designs fell on the decidedly uncreative end of the spectrum. They contained rows of simple shapes, spaced at even intervals, with no variation in color or size. There was “simply not enough creative authorship … to warrant copyright protection.”
Even though Novem’s designs were dull (according to the Copyright Office), some its arguments were quite creative. First, Novem introduced evidence of its design production process to show how many independent authorial decisions went into the selection and arrangement of the designs.
In presenting this evidence, Novem was expressly invoking the Eleventh Circuit’s opinion in Home Legend v. Mannington Mills, which we wrote about here. In that case, the Court held that it would consider evidence about the process through which a party created certain floor patterns (designed to resemble natural wood). However, the Court’s consideration of this evidence went only to the element of independent creation (the first element of originality). Specifically, the process evidence was introduced to show that the appearance of the flooring really was created by a human author, and not just found in the forest. Put another way, the evidence went only to whether the pattern was created, not whether it was creative.
By contrast, in the case of Novem’s car interior designs, the first element of independent creation was already conceded by CORB. All that mattered was the second element: whether the appearance of the designs, on their face, exhibited sufficient creativity. CORB held that the production process was irrelevant to that question.
Novem’s second creative argument involved texture. Novem argued that, even though it was seeking protection only for the two-dimensional patterns, the three-dimensional feel and texture of the designs should be considered by CORB as additional evidence of creativity. However, as CORB observed, none of the three cases proffered by Novem for this proposition were apt. Two discussed the importance of texture in the context of three-dimensional sculptural objects, and the third made only a passing reference to texture in dicta.
Finally, CORB also noted that, even if all the other obstacles had been overcome, Novem still would not be entitled to register both of its herringbone designs, because they were “identical except for their shading.” Section 906.3 of the Compendium provides that “merly adding or changing one or relatively few colors in a work, or combining expected or familiar pairs or sets of colors is not copyrightable, regardless of whether the changes are made by hand, computer, or some other process.”