In the grouping of rights that make up intellectual property protections, copyrights are sometimes considered the easiest rights to obtain because a copyright is considered to be created when an original work of authorship is fixed in a tangible medium of expression. As opposed to patents or trademarks, there is no need to register or otherwise take any formal action to hold a copyright. There are actions a copyright owner must take to be able to enforce a copyright, but the creation of the copyright can be generally considered automatic.
While the automatic nature of copyright seems simple at first glance, to qualify for a copyright a work must possess sufficient creativity which is a hard standard to quantify. Current case law requires only a modicum of creativity to be sufficient for a copyright. However, if the “creative spark” is missing or so trivial as to be virtually nonexistent, there is no copyright.
The question left by this test for authors and creators is, “what is sufficient creativity?” Courts have given only limited guidance saying letters are generally not protectable by themselves, and arrangements of numbers and names, such as phone books, are not sufficiently creative. The Copyright Office recently added to that list with the refusal to register the Union des associations européennes de Football’s (UEFA’s) two-dimensional graphic for a starball.
The Copyright Office deemed UEFA’s starball to not contain sufficient creativity because it merely a combination of black stars arranged in a circular space which is insufficiently creative.
The Copyright Office’s refusal of UEFA’s starball raises a large uncertainty for authors. UEFA’s starball required more design effort than printed letters or arranging a phone book. However, that design effort did not rise to “sufficient creativity.” What then is “sufficient creativity?” The Copyright Office does not directly answer that question, but it must be more than the creativity offered by UEFA’s starball. How this fuzzy “sufficient creativity” requirement will be applied to other copyright applications will be of interest going forward, as will whether or not UEFA appeals the decision.
Read the UEFA starball refusal here