Intellectual Property

Copyright Office Rejects Larabar Packaging Copyright Registration Application

Sorry, but a rectangular box with block letter text inside just doesn’t cut it.

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In yet another example of a rightholder trying to claim intellectual protection where none exists, General Mills applied for copyright registration over a simple packaging label for its Larabar product comprised of just a few non-copyrightable elements that basically boil down to a word inside a box. In fact, General Mills apparently felt that this design was so wonderful, it decided to appeal the Copyright Office’s initial rejection of its application. Spoiler alert: the Copyright Office rejected the claim again because using block letters against a red backdrop with a rectangle framing a word really doesn’t amount to much creativity.

In order to receive copyright protection, authors must demonstrate that their work has reached a threshold of originality. This issue comes up time and time again in copyright infringement cases and is an important concept in ensuring that not everything is locked away (for life of the author plus 70 years in the United States currently) and there are sufficient building blocks to create new works. Imagine if a three-note combination in music was enough for copyright protection — that author could then exclude anyone else from incorporation those three notes in his own song. Or basic facts that can only be expressed in a limited number of ways, such as the statement, “There are 118 known elements in the periodic table” — if this statement could be copyrighted, researchers and scholars could be seriously hampered because there are a limited number of ways to express this fact (and, of course, facts themselves are not copyrightable because copyright protects expression). Short phrases may similarly fail the originality requirement.

Originality is therefore critical to ensuring a robust copyright system that promotes the creation of future works. In the United States, this threshold requires at least a minimal level of creativity. It is not enough to say that a person has put in a lot of work or resources into creation; the Supreme Court expressly rejected this “sweat of the brow” doctrine in Feist Publications v. Rural Telephone Services when it found that a phone book lacked sufficient originality for copyright purposes.

And so, the Copyright Office rejected (again) General Mills’ registration application for the LARABAR packaging — a simple rectangular box around the word “LARABAR” in block letters on a red banner. In rejecting registration, the Copyright Office first references Feist, pointing out that the Court found that while works only need a “modicum of creativity” to satisfy the originality threshold, some works “fail to meet even this low threshold” which requires “more than a de minimis quantum of creativity.”

While “some combinations of common or standard design elements may contain sufficient creativity with respect to how they are juxtaposed or arranged to support a copyright . . . not every combination or arrangement will be sufficient to meet this test.” Quoting a Ninth Circuit case that rejected a claim of copyrightability over a “stereotypical jellyfish form” in Satava v. Lowry, the Copyright Office points to the following language as instructive: “It is true, of course, that a combination of unprotectable elements may qualify for copyright protection. But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection . . . a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”

The Copyright Office notes that the Larabar design is simply “a combination of words, simple shapes, and a set of basic color schemes.” While General Mills tries to spin this basic combination as “a distinctive red banner having a beige border that features the unique LARABAR logo compromising all-capital, block letters in a beige color contrasting the background color and having a thin black outline,” the Copyright Office rejects this argument and notes that “the general arrangement is common and any creative contribution is de minimis.” The Copyright Office concludes that “a minimal combination of words, simple shapes, and a set of basic color schemes—lacks the modicum of creativity required” for copyright protection.

While designs can certainly rise to the level of originality to warrant copyright protection, a rectangular box with block letter text inside just doesn’t cut it.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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