Why Is The Copyright Office Flying Blind In Rejecting Registration Of American Airlines’ New Design?

Ultimately, American’s case will eventually land on solid ground.

(Photo by Scott Olson/Getty Images)

When you think of American Airlines, you are hard pressed to find an airline that presents itself a more “American” context than that airline.  Sporting its double “A” and flying eagle logo along with its red, white and blue color scheme for many years, American Airlines (“American”) has identified itself with the United States (even going so far as to having painted stylized stars and stripes from the United States flag on the tails of its aircraft for years). After many years of evolving its logo but maintaining the color palette, American decided to modernize its logo and introduced its current design in 2013.  As part of its intellectual property strategy, American (properly) sought to register its new design with the U.S. Copyright Office to protect the expression. Oddly, its application has crashed and burned at the U.S. Copyright Office, leaving a lot of questions with few decent answers.

You have to admit:  it’s a bold yet neat design.  In a major rebranding, American sought to modernize its iconic double “A” logo and eagle with what looks like a stylized (if not somewhat abstracted) eagle’s head that bisects a diagonal design that looks like the vertical “rudder” of a jet aircraft, with blue above the eagle head and red below.  I don’t know about you, but it seems like a novel way to incorporate the eagle into a design that not only implies flying, but actually looks like it is moving at jet speed.  Simply put, the new American design looks, well, new.  Put another way, it looks original.  Unfortunately, the Copyright Office feels differently, to say the least.

After filing for copyright registration in June of 2016, American received its first rejection a few months later in October 2016, claiming that the design “lacks the authorship necessary to support a copyright claim.”  After seeking reconsideration of the rejection, the Copyright Office rejected the application again.  Understandably, American filed a second request for reconsideration, which was (you guessed it) rejected again in 2018.

The Copyright Office’s position is interesting (to say the least).  The Copyright Office first describes the work in plain terms as:

a trapezoid with two curved comers overlaid in the middle by a triangle with a curved right point, justified to the left edge of the trapezoid. The top of the trapezoid is blue, the bottom of the trapezoid is red, and the triangle is white. All of these elements have some shading. The trapezoid is reminiscent of an airplane’s tail, while the triangle could be described as an abstraction of a bird’s head.

With that in mind, the Copyright Office then outlines the “originality” retirements as espoused in the Supreme Court’s opinion in Feist Publications, Inc.v. Rural Telephone Service Company, 499 U.S. 340 (1991).   Specifically, for a work to be original, it must have independent creation and sufficient creativity. Id. at 345.  For the “independent creation” element, the work must be independently created by the author (i.e., not otherwise copied from elsewhere).  As for “sufficient creativity,” there must be more than a modicum of creativity, meaning that the work must possess “more than a de minims quantum of creativity.”  In essence, there must be more than just minimal creativity. That said, this threshold is very low — if copyright were a road, the originality requirement would be a speed bump.

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How so?  In Feist, the Supreme Court held that originality remains the “sine qua none” of copyright and that the white pages in a telephone directory simply did not embody the “modicum of creativity” necessary for protection (because they merely listed names, addresses and numbers in alphabetical order). Id. at 362.  That said, the Supreme Court stated that the yellow pages in a telephone directory may actually meet the threshold and be protectable expression should they embody some level of creativity in selection, coordination and arrangement.   Albeit an ultimately subjective test, application appears to be fairly straightforward — an author needs to make more than just de minims effort in creativity. In fact, the Feist court went so far as to say that originality cannot be found where “the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Id. at 359

This is where the Copyright Office pushes the stick over, kicks a hard rudder and tries to pull some aerobatics in applying the facts to the law in a way that that, quite frankly, stalls midair. According to the Copyright Office, “the Work is a dual-colored, curved trapezoid with a bisecting, shaded and curved triangle (i.e., roughly a “beak” shape)” that does not meet the criteria for creativity.  More simply, the Copyright Office claims that the work is merely the compilation of basic geometric shapes.  Seriously?  Even though the Copyright Office ostensibly agrees that the trapezoidal shapes “are reminiscent of an airplane’s tail” and that the triangle is “an abstraction of a bird’s head,” the overall design is merely a compilation of basic geometric shapes”?  Really?  If I hadn’t read the rejections myself, I would not have believed the Copyright Office would have taken this position and been so obtuse towards American.

If you are getting the impression that I strongly disagree with the Copyright Office’s position, well, you guessed correctly.  The Feist decision and its progeny all maintain the originality component is essential, but it is a low threshold to meet.  Where is the “creative spark” missing in American’s design?   How is such creativity “utterly lacking” or otherwise “virtually nonexistent”?  The Copyright Office is making a lot of maneuvers in its arguments regarding geometric shapes, etc., but the end result is simply not defensible.  Quite frankly, the Copyright Office’s arguments would ostensibly deny American of protection for its old double “A” logo with eagle because it is simple two capital “A: letters with a bird in the middle.  Of course, I would not (and do not) agree with such an assessment, but you get the point.

Understandably, American believes that the Copyright Office is wrong and is now taking the case up in federal court in the Northern District of Texas.  It’s the right move, but one that ultimately should not have been necessary.  When it comes to originality in copyright law, it is a step to overcome, but not a high one.  Ultimately, American’s case will eventually land on solid ground with a holding that finds a “modicum of originality” in the creation of the design. Let’s just hope that such turbulence will be avoided with the Copyright Office in the future.


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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.