The United States Copyright Office has refused Alfred Dunhill Limited’s second request for copyright registration of its geometric fabric pattern titled “Engine Turn”.

The basis for refusal was that “the Work does not contain the requisite originality necessary to sustain a claim to copyright“.

This follows the US Copyright Office’s initial refusal this past February, when the Review Board determined that the simple two-dimensional fabric design lacked the creativity to support a registration.

Credit: Image of the Engine Turn pattern from the refusal.

COPYRIGHT IN THE US

In the US, rights holders do not need to register a copyright in order to gain copyright protection. Copyright attaches to any original work that is “fixed in a tangible medium of expression”.

The US Copyright Act of 1976 and common law principles create the framework in establishing originality, fixation, and the idea-expression dichotomy.

While copyright of such original works in the US are automatic and granted when creating content, registration is not automatic. To register a copyright, an application must be filed with the copyright office along with a filing fee and copies of the work. Formally registering a copyright in the US grants the owner added benefits, including the ability to bring an infringement action in federal court and automatic evidence of validity.

In the United Kingdom, there are no official copyright registers.

THE REJECTION

In this case the application failed due to lack of creativity. As established in Feist Pubs, Inc v Rural Tel Svc Co, Inc, 499 US 340 (1991), only a modicum of creativity is necessary” to secure a copyright registration.

Dunhill’s Engine Turn print consists of diamonds repeated in symmetrical rows and columns, and appears across various products created by the company. Even with the relatively low threshold established in Feist, the Review Board found that the print did not contain the requisite originality to sustain a claim to copyright, whether considering each element of the pattern or the pattern as a whole.

In Dunhill’s second request for reconsideration, the company argued that the pattern at issue is similar to the stripes and chevrons found on the cheer-leading uniforms in Star Athletica, LLC v Varsity Brands, Inc, 137 S Ct 1002 (2017). However, the Review Board was unpersuaded on this matter, stating:

 The Office does not assert that works comprised of simple geometric shapes are precluded from copyright protection. To the contrary, as explained above the Office agrees that certain combinations of simple geometric shapes may be registered, but only if combined or arranged in a sufficiently creative manner. The Work here is merely a ‘display of a few geometric shapes in a preordained or obvious arrangement’”.

They also determine what may and may not be registrable stating “while the Office may register a work that consists merely of geometric shapes, for such a work to be registrable, the “author’s use of those shapes [must] result in a work that, as a whole, is sufficiently creative.”

MOVING FORWARD

Obtaining copyright protection of fashion designs in North America can be a challenge for creators in the industry.

Given that the items created by designers are often considered useful articles and serve some sort of utilitarian function, there exists an interesting and complex dynamic between granting protection and ensuring that essential elements and designs remain part of the public domain.

As for Dunhill, though the US Copyright Office Review Board establishes that some simple geometric shapes may be registrable, the Review Board makes it clear that the Dunhill’s Engine Turn pattern is not.