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of
Congress ·
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SE
· Washington,DC
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· www.copyright.gov
Via first class mail and email
Ali Fayad
P.O. Box 1317
Anaheim, CA 92815
May 9, 2017
Re:
Second Request for Reconsideration for Refusal to Register Converse Flow Depths;
Correspondence ID: 1-1SJCT3W (Original Correspondence ID: 1-1E053EA);
SRl-
1097149621
Dear Mr. Fayad:
The Review Board
of
the United States Copyright Office ("Board") has considered your
second request for reconsideration
of
the Registration Program's refusal to register a two-
dimensional art claim in the works titled "Converse Flow Depths" ("Works"
).
After reviewing
the application, deposit copy, and relevant correspondence, along with the arguments in the
second request for reconsideration, the Board affirms the Registration Program's denial
of
registration.
I.
DESCRIPTION OF THE WORKS
The Works are JPEG images from the website
of
Ali Fayad that include mathematical
formulas, text, and two-dimensional illustrations
of
two water-flow phenomena: a "hydraulic
jump" and a "sluice gate." The two JPEG images include a total
of
four two-dimensional graphs;
two bear the name "Fayad" and the other two bear the name "Belanger." The works, as
described by Fayad in his application, "caption mathematical relationships hitherto unknown to
the engineering and hydraulics community." Reproductions
of
the Works are set forth below.
Ali Fayad
May 9, 2017
¢=
=>
Converse
Flow Hy
cb-aulic
Jump
s
lui
ce
g te
Y su
'xtihcal
~
= Y
su
beritic
al
L
---L
__
.,.
_____
,
Converse flow
OsG
=>
~
Ys
~mil
lco
l =
Yd
!..--------.""'
*-
-
:::)
OsG
'!
. . . . .
al
te
rnat
e
depth
s . . . ...
con¢=
Alternate Depth
of
Sluice Gate
ldontical Subcritical Doptbs
,I}
y
R
- 2
s - -
Ya
=>
Hyd.-aulic
Jump
Identic
al
Superc1ilical Depth.•
vs.
I
QHJ
[2
/(
Rs"
0
·
5
+
Rs
0
·
5
)]
=
Qcon
. SG I
Y su
be
ri
tic
al
= Y
2
~·,.:.----~-
·
,,
-*-
.·
Ysupm1i
rlco
l
·····:··
Co1tjugate
Depth
of
Converse Flow
¢=
Converse
Flow
sl
uice
g le
Y
su
be
riti
c
al
--~
-
--
...
-
.....
-*-
Y
~tr
m tic
al
·
.....
Belanger
Conjugate Depth
ofH
y
ch-aulic
Jump
Flow
con
con
¢::
._
~ -~·
...
-. -
....
-th
......
.;..·
i.:.!.,.
·,
·
ett
e
rnat
e dep s
..
·
..
~
...
Identical Snlmiti<al Depths
&
ldeuti<al Supernitical Depths
vs.
Altemate
Depth
of
C
on
v
erse
Flow
II.
ADMINISTRATIVE RECORD
On December 24, 2013, Fayad filed an application to register a copyright claim in the
Works.
In
a January 22, 2016 letter, a Copyright Office registration specialist refused to register
the claim, finding that it lacks originality "[b ]ecause it contains only material predetermined by
functional considerations." Letter from Beth Garner, Registration Specialist, to Ali Fayad
(January 22, 2016).
In a letter dated April
19
, 2016, Fayad requested that the Office reconsider its initial
refusal to register the Works. Letter from Ali
S.
Fayad to U.S. Copyright Office (April
19
, 2016)
("First Request"
).
After reviewing the Works in light
of
the points raised in the First Request,
2
Ali Fayad
May 9, 2017
the Office re-evaluated the claims and again concluded that the Works were not copyrightable
because the Works are "a graphic and alpha-numeric depiction
of
mathematical/engineering
formulas." Letter from Stephanie Mason, Attorney-Advisor, to Ali Fayad, at 2 (August 12,
2016).
In a letter dated November
11
, 2016, Fayad requested that the Office reconsider for a
second time its refusal to register the Works. Letter from Ali S. Fayad, to U.S. Copyright Office
(November
11
, 2016) ("Second Request"). Fayad argued that the images qualify as two-
dimensional pictorial works - "an artist's rendering
of
water-flow phenomena" that are "capable
of
existing independently
of
the utilitarian aspects
of
the 'Converse
Flow
Depths.
"'
Id.
at 1- 2.
In the Second Request, Fayad resubmitted the images from the application, but redacted from
each image the formulas illustrated by the graphs. Fayad argued that "Copyright Reviewer's
concern to guard against granting copyright to a mere depiction
of
a formula becomes a moot
point now that formulas have been redacted."
Id.
at 4.
III. DISCUSSION
A.
The
Legal Framework
1)
Distinction Between Ideas and Expression
Section 102(b)
of
the Copyright
Act
provides that copyright protection for expressive
works does not extend to "any idea, procedure, process, system, method
of
operation, concept,
principle, or discovery, regardless
of
the form in which it is described, explained, illustrated, or
embodied in such work." 17 U.S.C. § 102(b). Section 102(b) codifies the longstanding principle,
known as the idea-expression dichotomy, that copyright law protects the original expression
of
ideas, but not the underlying ideas themselves. The Supreme Court in 1879 held that the
copyright in a book describing a bookkeeping system, with blank forms and ruled lines and
headings, did not give the copyright owner the right to prevent others from using the book-
keeping system described nor "the exclusive right to make, sell, and use account-books prepared
upon the plan set forth in such book."
Bak
er v. Selden,
101
U.S. 99,
102-04
(1879).
"Mathematical principles, formulas, algorithms, or equations" are ineligible for copyright
protection under section 102(b).
See
COMP
E
NDIUM
OF
U.S.
COPYRIGHT
OFFICE
PRACTICES§
313.3(A) (3d ed. 2014) ("
COMP
E
NDI
UM
(THIRD)
"). Though the Office is permitted to register a
sufficiently original artistic description, explanation,
or
illustration
of
an idea, procedure, process,
system, method
of
operation, concept, principle,
or
discovery, see H.R. Rep.
No
. 94- 1476, at 56
(1976), "the registration would be limited to the copyrightable literary, musical, graphic, or
artistic aspects
of
the work
...
"
COMP
E
NDIUM
(THIRD)§ 313.3(A). This principle is manifested
in the Office's regulations, which bar copyright protection for "[i]deas, plans, methods, systems,
or devices, as distinguished from the particular manner in which they are expressed or described
in a writing." 37 C.F.R. § 202.l(b). Originality springs from independent creation, not from
discovering a yet-unknown mathematical principle.
See Feist Puhl 'ns, Inc. v. Rural
Tel.
Serv.
3
Ali Fayad May 9, 2017
Co
., 499 U.S. 340, 347 (1991) ("[O]ne who discovers a fact is not its maker or originator. The
discoverer merely finds and records."
).
Copyright's merger doctrine, which states that idea and expression merge together when
the expression cannot be separated from the idea, is a closely related principle that bars
copyrightability
of
certain works. See
Bak
er,
101
U.S. at 103 (explaining that
if
the "art" that a
book "teaches cannot be used without employing the methods and diagrams used to illustrate the
book, or such as are similar to them, such methods and diagrams are to be considered as
necessary incidents to the art, and given therewith to the public"); CCC Info. Serv
s.,
In
c.
v.
Maclean Hunter Market Reports, Inc.,
44 F.3d
61
, 68 (2d Cir. 1994) ("[W]hen the expression is
essential to the statement
of
the idea, the expression also will be unprotected, so as to insure free
public access to the discussion
of
the idea."
).
For example, in
Ho
v. Taflove, the court rejected
plaintiffs' argument that its equations, figures, and text were the creative expression
of
a
scientific phenomenon
'just
as Mickey Mouse is a particular expression
of
a mouse." Ho v.
Taflov
e,
648 F.3d 489, 494 (7th Cir. 2011). As the court explained, unlike Mickey Mouse,
equations, formulas, and their illustrations "mimic[] reality," i.e., the underlying scientific
phenomena.
Id
Thus, "equations and figures are 'required by' the [phenomena] and as such, are
not subject to copyright."
Id
at 499 (internal citations omitted).
2) Originality
A work may be registered
if
it qualifies as an "original work[]
of
authorship fixed in any
tangible medium
of
expression."
17
U.S.C. § 102(a). In this context, the term "original"
consists
of
two components: independent creation and sufficient creativity. See Feist, 499 U.
S.
at 345. First, the work must have been independently created by the author, i.
e.
, not copied from
another work. Id. Second, the work must possess sufficient creativity. Id. Only a modicum
of
creativity is necessary, but the Supreme Court has ruled that some works (such as the
alphabetized telephone directory at issue in
Feist) fail to meet even this low threshold. Id. The
Feist Court observed that "[a]s a constitutional matter, copyright protects only those constituent
elements
of
a work that possess more than a de minimis quantum
of
creativity."
Id
at 363. It
further found that there can be no copyright in a work in which "the creative spark is utterly
lacking or
so
trivial as to be virtually nonexistent." Id. at 359.
The Office's regulations implement the longstanding requirement
of
originality set forth
in the Copyright Act and described in the Feist decision. See, e.g., 37 C.F.R. § 202.l(d)
(prohibiting registration
of
"[ w ]orks consisting entirely
of
information that is common property
containing no original authorship, such as, for example: Standard calendars, height and weight
charts, tape measures and rules, schedules
of
sporting events, and lists or tables taken from
public documents or other common sources"
).
Some combinations
of
common or standard
design elements may contain sufficient creativity with respect to how they are juxtaposed or
arranged to support a copyright. Nevertheless, not every combination or arrangement will be
sufficient to meet this test.
See Feist, 499 U.S. at 358 (finding that the Copyright Act "implies
that some 'ways' [
of
selecting, coordinating, or arranging uncopyrightable material] will trigger
4
Ali Fayad May 9, 2017
copyright, but that others will not"). A determination
of
copyrightability in the combination
of
standard design elements depends
on
whether the selection, coordination,
or
arrangement is done
in such a way as to result in copyrightable authorship.
Id.
; see also Atari Games Corp. v. Oman,
888 F.2d 878 (D.C. Cir. 1989).
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."
Coach, Inc. v. Peters, 386 F. Supp.
2d
495, 496 (S.D.N.Y. 2005).
Likewise, the Ninth Circuit has held that a glass sculpture
of
a jellyfish consisting
of
clear glass,
an oblong shroud, bright colors, vertical orientation, and the stereotypical jellyfish form did not
merit copyright protection.
See Satava
v.
Lowry, 323 F.3d 805,
811
(9th Cir. 2003). The
language in
Satava is particularly instructive:
It is true,
of
course, that a combination
of
unprotectable elements may qualify for
copyright protection.
But
it is not true that any combination
of
unprotectable
elements automatically qualifies for copyright protection. Our case law suggests,
and we hold today, that a combination
of
unprotectable elements is eligible for
copyright protection only
if
those elements are numerous enough and their
selection and arrangement original enough that their combination constitutes an
original work
of
authorship.
Id
. (internal citations omitted).
B.
Analysis
of
the Works
After carefully examining the Works and applying the legal standards discussed above,
the Board finds that the Works lack originality and, moreover, merge with the ideas they express.
Thus, the Works do not contain the authorship necessary to sustain a claim for copyright.
To begin, the Works do
not
satisfy the "de minimis quantum
of
creativity" required.
Feist, 499 U.S. at 363. As text, formulas, equations, and illustrations that uncreatively describe
mathematical principles, the Works are not entitled to copyright protection.
See 17 U.S.C.
§ 102(b);
CCC
Info. Serv
s.,
Inc., 44 F.3d at 68. Fayad himself describes the Works in his
application as "caption[ing] mathematical relationships hitherto unknown." Fayad thus
effectively concedes that mathematical principles set the terms for the illustrations - that is "the
expression is essential to the statement
of
the idea."
Id
. Additionally, Fayad has provided no
evidence that the converse flow depths "could be expressed
by
equations and figures other than
those used .
..
. "
Ho
, 648 F.3d at 499. Thus, the Works sought to be registered
by
Fayad fall
under the statutory prohibition
on
protection
of
"any idea, procedure, process, system, method
of
operation, concept, principle, or discovery," 17 U.S.C. § 102(b), a category under which the
5
Ali Fayad
May 9, 2017
Compendium explicitly includes "[m]athematical principles, formulas, algorithms, or equations."
COMPENDIUM
(THIRD)
§ 313 .3(A).
Simply redacting the formulas from the graphics - as Fayad did in the Second Request
but not in the deposit - does not, as Fayad claims, make the graphics based on mathematical
formulas a "moot point." Second Request at
4.
The Board must base its decisions only on the
works as deposited.
See
COMPENDIUM
(THIRD)
§ 1704.2.
Moreover, any claim that the two-dimensional graphics are copyrightable without the
formulas would still fail because authorship would be
de
minimis. The Compendium
of
US.
Copyright Office Practices
makes clear that any copyright related to the Works would only exist
for the "literary, musical, graphic, or artistic aspects
of
the work."
COMPENDIUM
(THIRD)
§ 313.3(A). In the case
of
the Works, that would have to be the arrangement
of
the text,
formulas, equations, and graphical illustrations
of
the mathematical principle. But these
elements
of
the Works are not registrable for two reasons. First, as discussed above, Fayad
concedes that the illustrations are entirely determined by the uncopyrightable mathematical
equations, and thus under the merger doctrine cannot be independently protected. See Ho, 648
F.3d at 499. Second, the text and illustrations, even considering them apart from the
mathematical equations, consist only
of
brief descriptive labels and two graphs on an x-and-y
axis, which neither separately nor together rise above
de
minimis creativity. See Feist, 499 U.
S.
at 362 (barring copyright protection for works that are "so mechanical or routine as to require no
creativity whatsoever").
IV. CONCLUSION
For the reasons stated herein, the Review Board
of
the United States Copyright Office
affirms the refusal to register the copyright claim
in
the Work. Pursuant to 37 C.F.R. § 202.S(g),
this decision constitutes final agency action in this matter.
BY: ~
Af
Chris Weston
Copyright Office Review Board
6
