Can I Copyright My Logo?August 27, 2021

Yes, logos are copyrightable, assuming, that the logo was independently created and possesses a sufficient level of creativity.

First, to be clear, copyrights and trademarks are very distinct. Generally, copyrights protect original works of authorship (e.g., music, books, art, movies, etc.), and trademarks serve as source identifiers to convey the origin of goods or services and distinguish those goods or services from the goods or services of another (e.g., brand names, slogans, logos, etc.). However, logos are one area where there is possible overlap between copyright and trademark law.

Although logos can be copyrightable, they must posses a minimal, but sufficient level of creativity. What amount of creativity is sufficient? This can be a difficult determination, but recent court opinions and Copyright Office Review Board Opinions can provide guidance.

One of the more well-known disputes regarding copyrightability of logos involves the American Airlines logo shown below.

On June 3, 2016, American Airlines filed a copyright application for the American Airline Flight Symbol. The Copyright Office rejected the application, and American’s subsequent Requests for Reconsideration, on the basis that the logo was “comprised of basic geometric shapes” which “fall below the threshold for creativity”. However, American filed suit against the Copyright Office in October of 2018 calling their decision “arbitrary, capricious… and an abuse of discretion.” Shortly after the lawsuit was filed, the suit was withdrawn when the Copyright Office Review Board agreed to use its discretionary authority to reverse the decision and grant the copyright registration (See Registration No. VA0002130520).

Another well-known rejection involves the logo for the Cyberpunk 2077 video game.  

The copyright application was filed in August of 2018 and was refused registration on the basis that it lacked sufficient authorship to support a copyright claim. The Review Board’s opinion affirming the rejection went on to state “both the Work’s individual elements and the Work as a whole fail to demonstrate copyrightable authorship. The Work consists of a short phrase in typeface and familiar geometric shapes—lines, dotted lines, and circles—that are not protected by copyright… The Work’s characters are unprotectable typeface with text effects. Those text effects suggest science fiction or futuristic aesthetics commonly used in typeface design.” Although some graphical works
largely comprised of lettering may be copyrightable, those “very limited cases” are when such
characters include original pictorial art that forms the entire shape of typeface characters, such
as, where the work is “an add-on to the beginning and/or ending of the [typeface] characters.”

And more recently, Speedway Motors filed three copyright applications covering versions of the logo shown below.

The Copyright Office rejected all three applications stating that “the Works do not contain sufficient original and creative authorship because the individual elements—circles—are “common and familiar shape[s], while the remaining element” is either a business name or a single letter.”

“The Board finds that, viewed as a whole, the selection, coordination, and arrangement of the shapes, colors, words, and letter(s) that comprise the Works are insufficient to render the Works sufficiently creative and original.”

Speedway then commenced an action in the Federal District Court in Nebraska, challenging the Copyright Office’s decisions as arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Earlier this month, the court held that the Copyright Office had not abused its discretion or acted in an arbitrary or capricious manner and granted the Copyright Office’s motion for summary judgment. Speedway Motors, Inc. v. Perlmutter, 2021 WL 3511134 (D. Nebraska Aug.10, 2021).

Additional opinions and examples can be found on the Copyright Office’s Review Board Opinion website.

While logos are potentially copyrightable subject matter, they must posses a minimal, but sufficient level of creativity. And as shown above, this analysis can be quite complex. There are a host of other factors to take into consideration when attempting to protect your logo and we recommend that you consult an attorney experienced with these issues prior to filing a copyright (or trademark application) on your logo.

Brandon W. Clark is the Chair of the Copyright, Entertainment & Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com.