Can NBA team logos be copyrighted? Or do they lack originality?

On March 16, 2017, the NBA filed an application to register a copyright in the Magic logo and, on April 6, 2017, filed applications to register copyright in the Pistons and Spurs logos.

Initial rejection: In October 30, 2017 letters, a Copyright Office registration specialist refused to register the claims, finding that the logos lacked originality. The NBA appealed to the Copyright Office Review Board and argued that the three logos meet the originality threshold because they are unique designs and not mere typographic ornamentations and that the logos comprise more than common and familiar shapes and mere letters.

Appeal: On the NBA’s second motion for reconsideration, the Board agreed with the NBA on the originality of the Pistons and Magic logos because they contained sufficient creativity, but the Board denied the registration of the Spurs logo. The question in registering a copyright in a logo is whether the combination of the elements is protectable.  The Board noted: “A mere simplistic arrangement of non-protectable elements does not demonstrate the level of creativity necessary to warrant protection. For example, the United States District Court for the Southern District of New York upheld the Copyright Office’s refusal to register simple designs consisting of two linked letter ‘C’ shapes ‘facing each other in a mirrored relationship” and two unlinked letter ‘C’ shapes “in a mirrored relationship and positioned perpendicular to the linked elements.'” (emphasis added).

In making this determination, the Board does not consider “the attractiveness of a design, the espoused intentions of the author, the design’s visual effect or its symbolism, the time and effort it took to create, or the design’s commercial success in the marketplace are not factors in determining whether a design is copyrightable. See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).”

The Detroit Pistons Logo

The Board found sufficient creativity in the Pistons logo for the following reasons:

  • The combination of the letter “D” and various geometric shapes featuring numerous colors and shading exhibits sufficient creativity.
  • The elements interact with one another in a singular manner; for example, the basketball passes through the letter “D,” as emphasized by the wedge shape to the left of the basketball illustrating movement.
  • The basketball and wedge shapes also feature stylized shading, which courts have considered a significant element in demonstrating originality.

The Orlando Magic Logo

The Board found sufficient originality in the Magic logo for the following reasons:

  • The Magic logo features four colors and, as in Nicholls and Prince Group, shading on the basketball, which adds three- dimensionality to the artwork.
  • The basketball is surrounded by a double border in black and white that incorporates numerous star designs, an arrangement that is not common or intuitive.

The design of the Magic logo is still relatively simple, and therefore the Board cautioned the NBA that the resulting copyright would be thin and would only protect the NBA from virtually identical copying.

The San Antonio Spurs Logo

However, the Board affirmed the refusal to register the copyright claim in the Spurs logo for the following reasons:

  • The placement of the lines on the basketball merely conforms to the size of the circle and helps to create the standard appearance of a basketball.
  • The arrangement of the “S” and “A” – unprotectable in themselves – also corresponds to the dictates of the basketball shape and design.
  • The minimal color scheme of black and gray does not add sufficient creativity to the design.

We can expect the NBA to appeal the Board’s decision in federal court.  The NBA is likely to take another shot at the issue of originality. Whether the fine distinctions the Copyright Board made in distinguishing the Spurs logo as unoriginal from the other two logos will likely be the subject of litigation.

by Adam Grodman, Chicago-Kent Center for Design, Law & Technology fellow

Porsche Loses Design Protection for 911 car in EU

In a recently decided appeal to the General Court, Porsche lost their EU design right to the classic Porsche motor 911.  See Porsche AG v. AUTEC AG, 20190606 – T-210_18.  Porsche filed its Community design (OJ 2002 L 3, p. 1) with the European Intellectual Property Office on 2 July 2004 for passenger cars. The Community design applied for is represented in the photographs above and below (“the Community design”): “Earlier design with the 997 series of Porsche motor 911).”

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Prof. Sarah Burstein talk on “Whole Designs”

event: Prof. Sarah Burstein of the University of Oklahoma College of Law is this year’s first speaker in the Center’s series on “What Is Design?”  That question is central to the scope of design protection, yet the answer may differ depending on one’s view of design.  Prof. Burstein examines the question of statutory subject matter of the design patent act and how we might reimagine the concept of what is a “design.”

bio: Sarah Burstein is an Associate Professor of Law at the University of Oklahoma College of Law. Her scholarship focuses on design law, with a particular focus on design patents.  She is a Research Affiliate of the Chicago-Kent Center for Design, Law & Technology.

She has participated, by invitation, in design law conferences at the University of Oxford, Stanford Law School, the Max Planck Institute for Intellectual Property and Competition Law, ETH Zürich, and Waseda University in Tokyo. Prior to joining the faculty at OU, Professor Burstein worked as an intellectual property litigation associate in the Chicago office of Kirkland & Ellis LLP. Professor Burstein has a law degree from the University of Chicago and B.A. in Art & Design from Iowa State University.

Date: Nov. 14, 2018
Time: 3:00 pm to 4:00 pm
Venue : Chicago-Kent College of Law

Prof. Orly Lobel BookIT talk on “You Don’t Own Me”

When Carter Bryant began designing what would become the billion-dollar line of Bratz dolls, he was taking time off from his job at Mattel, where he designed outfits for Barbie. Later, back at Mattel, he sold his concept for Bratz to rival company MGA. Law professor Orly Lobel reveals the colorful story behind the ensuing decade-long court battle.  The battle between Mattel, the makers of the iconic Barbie doll, and MGA, the company that created the Bratz dolls, was not just a war over best-selling toys, but a war over who owns ideas.

This entertaining and provocative work pits audacious MGA against behemoth Mattel, shows how an idea turns into a product, and explores the two different versions of womanhood, represented by traditional all-American Barbie and her defiant, anti-establishment rival―the only doll to come close to outselling her. In an era when workers may be asked to sign contracts granting their employers the rights to and income resulting from their ideas―whether conceived during work hours or on their own time―Lobel’s deeply researched story is a riveting and thought-provoking contribution to the contentious debate over creativity and intellectual property.

Orly Lobel is the Don Weckstein Professor of Law at the University of San Diego and received her doctoral and law degrees from Harvard University. She is a prolific speaker, commentators and scholar who travels the world with an impact on policy and industry. Her best-selling book You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side (Norton 2017) has been nationally and internationally acclaimed and received rave reviews from the Wall Street Journal, the Financial Times, the New Yorker, NPR, Modern Law, Times Higher Education, the Washington Blade, and more.

Official Launch: February 21, 2018

The launch of Chicago-Kent’s new Center for Design, Law & Technology occurred on February 21, 2018 with a public lecture by the center’s co-founder Graeme Dinwoodie, the Global Professor of Intellectual Property Law at Chicago-Kent, who will speak on “The Future of Design Copyright after Star Athletica?” Mark McKenna, Notre Dame Professor of Law and Presidential Fellow, who is a Research Affiliate of the Center, offered a reply.

5-6 pm – Public lecture by Prof. Dinwoodie and reply by Prof. McKenna (Approved for 1 hour of general IL MCLE and 1 hour of general PA MCLE; download CLE materials here)

6-7 pm – Reception

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