Copyright and the Originality Requirement for 2-D and 3-D Designs: Guidance From Recent Decisions, Application to NFTs

Director Tracy-Gene G. Durkin and Counsel Ivy Clarice Estoesta will be speakers in the Strafford webinar titled “Copyright and the Originality Requirement for 2-D and 3-D Designs: Guidance From Recent Decisions, Application to NFTs” on Wednesday, July 7, 2021, from 1:00 to 2:30 PM EDT. This CLE webinar will guide IP counsel on the originality requirement for copyright and the challenges of meeting that requirement. The panel will discuss recent U.S. Copyright Office Review Board and judicial decisions involving 2-dimensional and 3-dimensional designs and consider how the law applies to non-fungible token or NFTs. The panel will also compare the types of works that are copyrightable in the EU, as well as discuss unregistered design right in the EU.

Description

Thirty years ago, the U.S. Supreme Court appeared to lower the bar for satisfying the originality requirement for copyright when it decided that it “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Publ’ns Inc. v. Rural Tel. Serv. Co. (U.S. 1991)

However, since that decision, the seemingly easy-to-satisfy requirement appears to be a bigger challenge than expected, particularly for 2-dimensional designs, like logos, graphical user interface, and icons, but also for 3-dimensional designs, particularly when the designs are for useful articles. Therefore, while the standard for originality has been set, application of that standard has proven to be elusive. And recent decisions by the U.S. Copyright Review Board and the courts are revealing inconsistent results making it hard to predict the outcome in any given case and therefore to provide guidance to clients on registrability.

The situation is the EU is similar as shown by the recent Brompton Bicycles and Cofemel decisions involving originality for copyrightability in the EU.

Listen as our authoritative panel of IP attorneys examines the copyright originality requirement and the challenges of copyrighting 2-dimensional and 3-dimensional designs in the U.S, and compares how similar designs are protected by copyright and unregistered design rights in the EU. The panel will discuss recent U.S. Copyright Office Review Board and judicial decisions involving 2-dimensional and 3-dimensional designs, to help IP Counsel assess whether copyright protection is a viable option in the U.S. and/or the EU. The panel will also discuss the U.S. Copyright Office appeal process and best practice tips for overcoming a refusal. The panel will conclude with a discussion of the applicability of current copyright law to NFTs.

Outline

1. Process for registering a work with the U.S. Copyright Office
2. Originality requirement challenges to registration, including recent decisions by the U.S. Copyright Office Review Board and federal courts
   1. 2-D designs
      1. Logos/icons
      2. GUI
      3. Fabric patterns/prints
   2. 3-D designs
      1. Useful articles
3. Copyrightability and the unregistered design right in the EU
   1. How are copyrights and unregistered design rights obtained in the EU
   2. Eligibility for copyright protection in the EU post-Cofamel
4. Considerations for deciding when to register a work with the U.S. Copyright Office
5. U.S. Copyright Office appeal process and best practices for responding to and overcoming refusals
6. Copyright issues involving NFTs

Benefits

The panel will review these and other key issues:

• What guidance do court and Copyright Review Board decisions provide to those seeking copyright protection for 2-D and 3-D designs?
• How can artists effectively protect creative works and avoid infringement claims in the creative process?
• How differently does the EU address the issue of originality for purposes of copyright protection?
• What copyright issues related to NFTs should creators be aware of?