We have often discussed the many rights and privileges that copyright owners enjoy. But, did you know that not every copyright is created equal? Some copyrights are "thin" and these scrawnies do not provide nearly the same level of protection as normal copyrights. So, if you want to protect your work it is necessary to understand the level of protection that may be available. Let's dig into it a bit.
What is a Thin Copyright?
It doesn't take much for a work to be copyrightable - only a "modicum" of creativity is required. But, if all you have is a modicum, a thin copyright is likely what you'd end up with. This is when a work has just enough creativity to qualify for copyright. It is slightly creative. It has "scant creativity." [1] You get the picture. These works are not entitled to the same robust protections as those works that are highly creative. Whereas, with a normal copyright, you can prevent others from making certain reproductions, substantially similar works and derivative works, with a thin copyright you are protected only from "virtually identical" copying. Meaning, another work could be very similar to yours and not be infringing. It could also be a derivative and not infringe. It would have to be nearly a carbon copy to trigger copyright protection.
Why Thin Copyrights?
A big motivation for including copyright in the Constitution and for Congress making the Copyright Act so robust was to incentivize the creation of original works. But, on the other hand, copyright has hard time and subject matter limitations so that no one can monopolize ideas or creative elements that should be available to the public. Somewhere between these two concepts (robust rights and hard limitations) lives the "thin copyright." We want to reward creativity and intellectual labor, even if there is just a little. But we don't want to allow individuals to take a tiny bit of creativity and use it to control elements that would otherwise be free for everyone to use.
Examples of Thin Copyrights
So what kind of works would be considered as having thin copyrights? Let's look at a few examples.
Ets-Hokin v. Skyy Spirits, Inc. and the Merger Doctrine
In the Ets-Hokin v. Skyy Spirits, Inc. case, the doctrine of "merger" and thin copyrights featured prominently. Photographs usually enjoy robust copyright protection but, when you are photographing something like the Skyy vodka bottle shown here, there are only so many ways you can portray it. Most photos that intend to feature the bottle will all tend to look similar since the subject would be identical. This is the merger doctrine at work - when there are limited ways in which to express an idea (in this case, a vodka bottle product shot) then the expression and idea are said to have "merged" and that merged item is not eligible for copyright protection. When you are trying to figure out the copyrightability of a work and there are uncopyrightable elements, your analysis has to disregard those elements. So, if there are elements of piece that are subject to merger, they are not considered. In regards to the vodka bottle, when you disregard the bottle itself all you have left are photographic elements such as lighting, angles, filters, shadows and highlighting, etc. While these can be copyrightable components, in the Skyy vodka case, considering those remaining elements resulted only in a "thin" copyright. I.e. the photos contained a limited amount of creativity and only near identical reproductions would be considered infringing. [2]
Satava v. Lowry
In the Satava v. Lowry case, glass artist Richard Satava filed a copyright infringement lawsuit against Christopher Lowry when Lowry began creating glass-in-glass jellyfish sculptures similar to those Satava created as shown here. Satava's claim was not successful. The court determined that most of Satava's sculpture is not protectible - the look, shape and orientation of a realistic looking jellyfish cannot be owned by any one artist. Such elements are in the public domain and are free to use. When the unprotectible elements were disregarded, what remained resulted only in thin copyright protection. As the court explained:
"[Satava] has made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes' bells. To the extent that these and other artistic choices were not governed by jellyfish physiology or the glass-in-glass medium, they are original elements that Satava theoretically may protect through copyright law. Satava's copyright on these original elements (or their combination) is "thin," however, comprising no more than his original contribution to ideas already in the public domain. Stated another way, Satava may prevent others from copying the original features he contributed, but he may not prevent others from copying elements of expression that nature displays for all observers, or that the glass-in-glass medium suggests to all sculptors. Satava possesses a thin copyright that protects against only virtually identical copying." [3]
"The Rack Stack"
The logo shown here belongs to LPC Commercial Services, Inc. and is called "The Rack Stack." It was approved for copyright in June 2021 after an initial denial. It was first denied because it consists of common geometric shapes which are generally not eligible for copyright protection. But, after an appeal, the Copyright Office approved the copyright because it determined that, although the logo consists of unprotectable common design elements, the combination and arrangement of said elements met the low creativity bar. The use of color, shades and hues in addition to the use of white space to create a visual effect showed enough creativity to sustain the copyright claim. But, the approval was based on "the low standard for copyrightability and relates only to the specific combination of colors and shapes in the Work as a whole. The finding of copyrightability does not extend to any of the standard, common elements of the Work...Because the Work creatively arranges geometric shapes which are depicted using different colors and shades, the resulting Work is sufficient to sustain a claim, albeit thin, to copyright." [4]
Feist v. Rural
In Feist Publications, Inc. v. Rural Telephone Service Company, Inc., Rural was a public utility company. Pursuant to a state law, Rural was required to produce an annual telephone directory for its users. The directory contained the names and contact information for its subscribers along with advertising. Feist was a publishing company and, long story short, Feist copied names and addresses from Rural's telephone directory and printed them in its regional directory. After Rural sued Feist for copyright infringement, the United States Supreme Court held that there was no infringement because the facts (names and addresses) Feist copied were not eligible for copyright protection in the first place. Once the facts were disregarded, the only components remaining that could be copyrightable were the selection (what facts were included) and the arrangement of said facts. "This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement." [5]
The Takeaway for Crafters
One thing that you may notice if you consider the above examples is that all of the works were mostly comprised of unprotectible items. Once those were disregarded, what was left was not highly creative. This is something to keep in mind if you routinely use unprotectible elements in your work because what constitutes infringement as it relates to thin copyrights is materially different than with a normal copyright. This could mean the difference between being able to file a DMCA takedown and not.
I discuss quite a bit about unprotectable items in my e-book, check it out here.
[1] 4 Nimmer § 13.03[A] at 13-28.
[2] Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003).
[3] Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003).
[4] Copyright Office Correspondence IDs : 1-40JUZY5 June 29, 2021 https://www.copyright.gov/rulings-filings/review-board/docs/rack-stack.pdf (emphasis added).
[5] Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340, 349 (1991)
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