The Fort Worth-based airlines, American Airlines, recently took a detour in its attempt to obtain copyright registration for its new logo by filing a lawsuit against the Copyright Office in federal court in the Northern District of Texas. American, believing the Copyright Office’s determination to be wrong, has requested the federal judge overrule the department’s decision. The airline goes on to assert that the agency routinely accepts registration for logos that are no more, and in many cases less, creative than that of American.
In June of 2016, American first filed for copyright registration of its new logo. A few months later, in October of 2016, the Copyright Office rejected the application claiming the logo “lacks the authorship necessary to support a copyright claim.” After this initial rejection, American sought reconsideration, which was against denied. Yet again, the air carrier sought reconsideration, which was finally rejected in 2018.
Due to a major rebranding that was concurrent with American Airlines’’ merger with U.S. Airways, the former sought to revamp its iconic double “A” logo and introduce a more modern image. The previous “AA” logo had been in use for more than 40 years, beginning in 1968. The new logo, first introduced in 2013, features an eagle with its head bisecting a diagonal design encompassing the eagle’s wings and which also looks like the vertical rudder of a jet aircraft. The color blue appears above the eagle’s somewhat abstract head while red appears below, thereby maintaining the classic “American” color scheme. When initially introduced, the logo’s designer, Futurebrand, was awarded a Clio, which is a top advertising award, for its work.
The Copyright Office vehemently disagrees with American’s position, finding that the logo does not even comprise the minimal level of creativity necessary for copyright registration. At one point, the office even stated, “while the bar for creativity is low, it does exist and the work cannot glide over even its low heights.” The agency describes American’s logo as “a trapezoid with two curved corners 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.”
Copyright protection subsists in original works of authorship. Thus, to be protectable as a copyright, each work must at least satisfy the originality requirement, which necessitates the work have independent creation and sufficient creativity. Independent creation merely means he work was independent created by the alleged author and was not copied from someone or somewhere else. Sufficient creativity, on the other hand, requires that there must be “more than a modicum of creativity.” That is, the work must possess more than a de minimis quantum of creativity. This very low threshold was discussed and solidified in Feist Publications, Inc. v. Rural Telephone Service Company, 499 U.S. 340 (1991). In that case, the Supreme Court found that the white pages in a telephone directory do not embody the requisite modicum of creativity because they simple listed names, addresses, and numbers in alphabetical order. By contrast, the Court held, the yellow pages in a telephone directly may potentially meet the threshold level because they embody some level of creativity in the selection, coordination, and arrangement.
Notably, American Airlines’ logo is already registered as a trademark. In fact, American owns multiple registrations and applications incorporating the logo as a trademark. It is understandable why the company would seek copyright protection in addition to its trademark registrations though. Namely, copyright registration offers a broader range of protections as it allows the owner to protect against any unlicensed use that is outside of fair use. Dissimilarly, trademarks refer to phrases, symbols, or designs of one party that distinguish that party from others in the relevant marketplace and trademark registration only allows the owner to prevent the mark from being used by others in commercial settings. Moreover, trademarks are designed to prevent confusion in the relevant marketplace, not merely copying, which severely limits what uses of a trademarked logo may be considered infringing.
Representatives from the Copyright Office have not released any public statement nor have they responded to the lawsuit. American Airlines has publicly remarked that it is not taking its decision to bring suit against the agency lightly. Indeed, in its complaint, American acknowledges that in most cases, the Copyright Office’s decisions are “consistent and well-reasoned,” but that the present decision is “arbitrary, capricious…and an abuse of discretion.” If Supreme Court precedent in Feist Publications, Inc. is followed, American is expected to be successful in this litigation.