Up Down Periscope! Twitter's New Logo Not Creative Enough for Copyright
by Susan Basko, esq
Back on September 9, 2016, Twitter applied for a trademark registration on the logo shown above, for use on its Periscope service. The Trademark Examiner at the U.S. Patent and Trademark Office (USPTO) did a good deal of thoughtful work to change the wording and category of service to make it fit the international trademark being sought. On October 3, 2017, the trademark received a certification for the following uses:
Providing online entertainment and real time news information, namely, providing news, information and commentary in the fields of entertainment, sports, fashion, education, recreation, training, blogging, celebrity, culture, namely, entertainment, sports and popular culture, and current events via the internet and other communications networks; current event news reporting services; entertainment services, namely, providing audio and audiovisual programs featuring entertainment, namely, news, information and commentary in the field of entertainment, and real time news content delivered by streaming via the internet and other communications networks.
The Design Search Codes used to search the database for possible conflicting designs were:
DESIGN SEARCH CODES:
01.11.02 - Moons, crescent
01.11.02 - Moons, half
01.11.02 - Partial moons, including half moons and crescent moons (not a moon with craters)
01.15.08 - Raindrop (a single drop)
01.15.08 - Single drop (rain, tear, etc.)
01.15.08 - Teardrop (a single drop)
26.01.21 - Circles that are totally or partially shaded.
01.11.02 - Moons, crescent
01.11.02 - Moons, half
01.11.02 - Partial moons, including half moons and crescent moons (not a moon with craters)
01.15.08 - Raindrop (a single drop)
01.15.08 - Single drop (rain, tear, etc.)
01.15.08 - Teardrop (a single drop)
26.01.21 - Circles that are totally or partially shaded.
Twitter also applied to register a Copyright on the logo, but the U.S. Copyright Office refused to register the design, saying it was not creative enough. Twitter asked for a reconsideration and was denied again. Twitter asked for a second reconsideration and was denied yet again.
Copyright law states that works of visual art made of standard geometric shapes cannot be registered. That includes such shapes as circles, squares, ovals, parallelograms, cylinders, and all other common geometric shapes. Copyright law also precludes other stock elements such as letters, numbers, punctuation marks, the marks on a keyboard, smiley faces, etc. However, arrangements of those elements that are sufficiently creative can have copyright. In denying a copyright for the Periscope logo, the Copyright Office stated that it “does not contain a sufficient amount of original and creative graphic or artistic authorship to support a copyright registration.” The third refusal letter explains, "that there are no elements or features in the design, alone or combined, that are eligible for copyright protection."
The Copyright Board concluded that the logo was the same as a vector point on a map, with slight variation. "Hence, the Board finds that the selection and combination of the Work’s design elements are not sufficient to render the Work original, because the Work is a mere variation of a standard map pointer vector."
The refusal letter continues, "Further, to the extent that the removal of a small portion of the red circle by placement of a white semi-circle causes the interior of the Work to represent an eyeball, the depiction is simplistic and does not exhibit sufficient creativity to render the Work copyrightable. Rather, the evocation of an eyeball in the Work does not amount to materially more than the layering of one uncopyrightable geometric shape upon another. See Feist, 499 U.S. at 359 (“There remains a narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”). Therefore, this basic and elemental rendering of an eyeball does not generate the necessary creative expression. Relatedly, the decision to center common and familiar shapes within a standard industry design does not exhibit the creativity to support a registration." (The full refusal letter is shown below.)
The refusal letter continues, "Further, to the extent that the removal of a small portion of the red circle by placement of a white semi-circle causes the interior of the Work to represent an eyeball, the depiction is simplistic and does not exhibit sufficient creativity to render the Work copyrightable. Rather, the evocation of an eyeball in the Work does not amount to materially more than the layering of one uncopyrightable geometric shape upon another. See Feist, 499 U.S. at 359 (“There remains a narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”). Therefore, this basic and elemental rendering of an eyeball does not generate the necessary creative expression. Relatedly, the decision to center common and familiar shapes within a standard industry design does not exhibit the creativity to support a registration." (The full refusal letter is shown below.)
Okay, so Twitter no doubt paid a small fortune for some designer to create this logo, it managed to pass muster at the USPTO, and the Copyright Office slammed it by relegating it to the “narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”
But aren't logos supposed to be simple but memorable? This and other Copyright refusals on logos leaves me thinking there should be a Copyright category specifically for logos. Trademark exists to protect logos, but Copyright has other protections.
Years ago, I did tech work at one of the most famous art museums in the world. As part of my work there, I attended hundreds of lectures about art, architecture, design, art conservation, etc. The lectures about modern art works were especially enlightening for me. There would be an incredibly simple design, or what looked like a sloppy smearing of paint. The lecturer would explain the process and the meaning of the art work, and by the end of the lecture, I would have a much greater appreciation for the work of art.
I think perhaps the Periscope logo fits into this same category of modern art. I see it as simple, but elegant. Maybe the Copyright Board lacks appreciation for modern art and design. Have the people at the Copyright Board making these decisions had any formal training in art and design, or have they simply been educated in Copyright law and precedent? Under the logic of their decision, a gaudy busy design, which could be considered very poor by logo design standards, would most likely be considered worthy of copyright protection.
Copyright law does not allow several things to be considered in whether to grant Copyright on a work of art. The amount of time, work, effort, and money it took to create the work cannot be considered. The underlying meaning or connotation cannot be considered. That rules out all those meanings explained by art appreciation lecturers. To an art lecturer, the eyeball shape in the Periscope logo might represent the individual's view of the world around him or her, but at the Copyright Office, it is an eyeball shape, stock, and not protectible by Copyright.
This might seem like a simple matter, but quite a few other logos have been denied Copyright, even if they have been given a Trademark certificate, which is no small feat in itself. There is a bit of a logo crisis.
What protections does Copyright offer a logo that cannot be had by Trademark? Try to think up examples. The abuses that people can think up seem far-fetched, until they happen. For example, someone could probably take the Periscope logo design shown above and print it on notebooks, clothing, umbrellas, or toys. The Trademark only protects the logo in its use to designate the source of those online services in the description. The logo in itself is not a protected design, does not have Copyright.
I propose that the Copyright office and/or Copyright law create a new category of two dimensional visual art work specifically for logos. Logos should be simple. Logos should be memorable, and thus, should relate to images already known. Logos will often consist of an arrangement of other elements that in themselves, cannot have copyright, such as letters and shapes. I propose that a logo department of the Copyright office would be staffed by people who are trained in art and design, as well as trained in Copyright law. They would be trained to understand and appreciate simplicity of design.
Copyright Refusal Letter fo... by Sue Basko on Scribd