Il tentativo di registrare come opera dell’ingegno derivata la (nuova) statuetta dell’Oscar è stato rigettato anche in appello (amministrativo).
Si v. la decisione 23.07.2021 del Copyright review Board dello US Copyright Office, con le foto dell’opera originaria (non proprio tale, ad onor del vero, essendo anche essa a sua volta derivata: v. ivi, nota 1) messe vicino a quelle dell’opera derivata chiesta in registrazione-
la ragione del rigetto sta nella mancanza di originalità . che deve essere presente anche nella opera derivata (come da noi)
Le linee guida (Compendium) dell’Ufficio dicono al § 311.2 (3a ediz.): <<The amount of creativity required for a derivative work is the same as that required for a copyright in any other work. “All that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’” Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102–03 (2d Cir. 1951) (citing Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d. Cir. 1945)). Thus, “the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the [preexisting] work in some meaningful way.” Schrock v. Learning Curve International, Inc., 586 F.3d 513, 521 (7th Cir. 2009).“While the quantum of originality that is required may be modest indeed,” courts have recognized that derivative works “[l]acking even a modest degree of originality. . . are not copyrightable.” L.Batlin &Son, 536 F.2d at 490; Durham Industries, Inc. v. Tomy Corp.,630 F.2d 905, 911 (2d Cir. 1980).
Miniscule variations do not satisfy this requirement, such as merely changing the size of the preexisting work. Merely recasting a work from one medium to another alone does not support a claimin derivative authorship. See L. Batlin & Son, 536 F.2d at 491. “Nor can the requirement of originality be satisfied simply by the demonstration of ‘physical skill’ or ‘special training.’” Id.>>
E poi : <<A registration for a derivative work only covers the new authorship that the author contributed to that work. It does not cover the authorship in the preexisting work(s) that has been recast, transformed, or adapted by the author of the derivative work. H.R.REP.NO.94–1476,at 57 (1976), reprinted in1976 U.S.C.C.A.N. at 5670>> (precisaizone peraltro ovvia).
La decisione dunque così applica la regola:
<<Reviewing the new authorship, it is clear that the Work does not qualify for copyright protection. The circular and cylindrical shapes of the Work’s base are not copyrightable, nor is the color or material in which the work is cast or the letters and stylized font. 37 C.F.R. § 202.1 (prohibiting registration of “[w]ords and short phrases . . . familiar symbols or designs; [and] mere . . . coloring”); Darden v. Peters, 488 F.3d 277, 287 (4th Cir. 2007) (the addition of “color, shading, and labels using standard fonts and shapes [to a preexisting work] fall within the narrow category of works that lack even a minimum level of creativity” required for registration); L. Batlin & Son, 536 F.2d at 490 (noting that changes in medium alone do not constitute originality); COMPENDIUM (THIRD) §§ 310.9, 311.2, 906.2, 906.4. Indeed, the newly added cylindrical base is a common shape for standard trophy or statute bases.2 The addition of the words and lettering at the base of the Work is likewise not sufficiently creative, as it amounts to a minor variation of a common trophy design. Taken as a whole, the new authorship simply does not distinguish the Work from the Prior Statuette. While the Office and an observer may be able to identify differences in the Work, these few differences are not sufficient to satisfy the creativity requirement. As discussed above, the new expression merely adds non-copyrightable elements to a prior work. Where a design combines uncopyrightable elements, it is protected by copyright only when the “elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Satava, 323 F.3d at 811. Here, the new contributions are too few and minor to make the Work distinguishable from the Prior Statuette in a meaningful way. A claim to register a derivative work that adds only non-copyrightable elements to a prior work is not entitled to copyright registration.SeeBoyds Collection, 360 F. Supp. at 661; Waldman Publ’g Corp., 43 F.3d at 782 (requiring sufficient creativity in the new authorship contained in a derivative work)>
Anche l’eccezione di “modernizzazione” dell’iconica statuetta è rigettata: <<HFPA focuses heavily on the aesthetic value and merit of the Work, asserting that it created a modern version of an award with a “classic and iconic look.” Second Request at 9. The Work, HFPA contends, is thus far from an “inexpensive youth soccer team award.” This argument, however, misses the mark. The Office must use only objective criteria to determine whether a work satisfies the originality requirement.See COMPENDIUM (THIRD) § 310. In doing so, the Office does not consider the aesthetic quality of the Work, look and feel of the Work, the author’s artistic judgment, or the commercial appeal or success of the Work. COMPENDIUM (THIRD) §§ 310.2, 310.4, 310.6, 310.10. As the Supreme Court has cautioned, it is imprudent to make such aesthetic and subjective judgments when evaluating the copyrightability of particular works. See, e.g., Bleistein, 188 U.S. at 251 (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of [a work’s] worth.”). Therefore, no matter how aesthetically pleasing a work may be, that aspect does not weigh in favor of copyrightability.>>
La sentenza di solito citata intema di creatività nel US common law è quella del 1991 della Corte Suprema Feist Publications, Inc., v. Rural Telephone Service Co., più volte citata.
(notizia appresa dal post di R. Harvey nell’ottimo blog IPKat).
