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Ashton v. United States Copyright Office

United States District Court, District of Columbia

March 8, 2018



          Amit P. Mehta United States District Judge

         In her now iconic song “Sorry, ” Beyoncé Knowles references the universally understood “middle finger”[1] to express her hostility and feelings of betrayal over what listeners widely believe to be her husband's infidelity.[2] Plaintiff Wesley Scott Ashton makes use of the middle finger for a different reason: He has placed a “pictogram” of an extended middle finger on a coffee mug, along with the phrase “People Pleaser in Recovery, ” to communicate a satirical message about overcoming obsequious behavior-quite literally an act of “mean mugging.”[3] Plaintiff seeks to copyright the combination of words and image, claiming it is a “highly creative poetic literary work.” Defendant United States Copyright Office[4] viewed Plaintiff's work differently. The agency determined that the combination of the words “People Pleaser in Recovery” and “Refill, ” with an image of a raised middle finger, is not sufficiently creative to constitute a copyrightable literary work.

         Plaintiff filed this suit pro se to challenge Defendant's denial of his copyright application. He contends that Defendant failed to consider certain evidence he presented in his application and, furthermore, that Defendant's decision that his work is not sufficiently creative to warrant copyright protection is wrong as a matter of law. Both parties have moved for summary judgment. Finding no violation in Defendant's decision-making process or the substance of its decision, the court denies Plaintiff's Motion for Summary Judgment and grants Defendant's Cross-Motion for Summary Judgment.


         A. Administrative Proceedings

         In March 2012, Plaintiff Wesley Scott Ashton submitted an application to the United States Copyright Office (“Defendant”) to register a work he titled “People Pleaser” (“the Work” or “mug”). Admin. R., ECF No. 19 [hereinafter AR], at 2. Plaintiff's Work is a hand-painted coffee mug that contains text and images. See AR at 3, 12-13. The exterior cylindrical surface of the mug reads “People Pleaser in Recovery” and is adorned with three butterflies, a yellow flower, and a lizard. See AR at 3-4, 7, 35. The bottom exterior of the mug contains an image of the back of a fist with a middle finger extended. See AR at 13. Below it is the hand-written text: “2008 (c) WSA.” The word “Refill” is written on the bottom interior of the mug. See AR at 12. Images of the Work appear below.

         (Image Omitted)

         On his application, Plaintiff indicated that he wanted two different copyrights: one for “2-Dimensional artwork” and another for “Text.” See AR at 1. Defendant rejected Plaintiff's application on July 3, 2013, reasoning that the Work “lacks the authorship necessary to support a copyright claim.” AR at 43-44. The decision stated that the text of Plaintiff's Work “will not support a claim to copyright under the [legal] standards” because it lacked the minimum amount of text needed for protection. AR at 43. Defendant noted that Plaintiff's “artwork on the cup is copyrightable, ” but because Plaintiff had “refused to have the claim in text” removed, Defendant was denying Plaintiff's application in full. AR at 43.

         Plaintiff sought reconsideration of the denial, but this, too, was unsuccessful. In a letter dated September 20, 2013, Plaintiff asked Defendant to revisit its decision, contending that it was “flawed on its face” because it did not provide a rational explanation for its rejection of his application. AR at 47. Plaintiff seemingly sought both a copyright for the Work's text and a copyright for the artwork. See AR at 49 (arguing that his Work is “copyrightable as a combined composition of art and text.”). In addition, Plaintiff argued that the “text” on the mug constituted a “literary work, ” as that term is defined in the Copyright Act. AR at 51; see also 17 U.S.C. § 101 (defining “literary work”). He identified the “text” of his Work as “three phrases”: two “script phases”-“People Pleaser in Recovery” and “Refill”-and a “pictogram of the raised middle finger.” AR at 51-52. Plaintiff argued that “the three phrases together include the requisite minimum degree of creativity to merit copyright protection because even shorter, less expressive one line sentences” have received such protection. For support, he cited to Universal City Studios, Inc. v. Kamar Industries, Inc., No. H-82-2377, 1982 WL 1278 (S.D. Tex. Sept. 20, 1982). AR at 52. And to buttress his position that a “raised middle finger” is copyrightable text, he cited and submitted a copy of a 82-page law review article, Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008), for the proposition that the gesture has “particularly vulgar connotations.” AR at 52.

         These arguments did not persuade Defendant, who denied Plaintiff's request for reconsideration in a letter dated January 9, 2014, which expanded on its initial decision. AR at 149- 50. This second decision stated that Defendant had “carefully reviewed this work in light of the points raised in your letter” and acknowledged some specific points Plaintiff had raised in his reconsideration request, e.g. AR at 149 (“[Y]ou note that . . .”), but concluded that “the simple combination and arrangement of the short phrase and word simply does not contain any authorship that would support a copyright registration in text” under the law. AR at 150. In reaching this decision, Defendant excluded from the “text” it considered for copyrightability the middle finger drawing; Defendant said that it considered that image to be “2D artwork, not text.” AR at 150. At the end of the decision, Defendant invited Plaintiff to proceed with registering the artwork on his mug. AR at 150.

         Plaintiff again sought reconsideration in a letter dated April 4, 2014. In this final request to the agency, Plaintiff asserted that the middle finger is “text, ” because it is a word, indicia, or symbol and, therefore, meets the definition of a “literary work” in the Copyright Act, 17 U.S.C. § 101, and possesses “a sufficient amount of originality . . . to merit copyright protection as text.” AR at 155-56. Again, he directed Defendant to the law review article Digitus Impudicus. AR at 155. Building on his argument that the middle finger drawing constituted “literary work, ” Plaintiff asserted that his Work's “text” contained “three phrases working together . . . to express an idea in a poetic manner that possesses a sufficient amount of creativity to merit copyright protection as a text.” AR at 157. Defendant explained that the “text” of his mug, “when property construed, ” constitutes a three-line poem:

The two script phrases are “People Pleaser in Recovery” located on the side wall of the work and “Refill” located inside the cup on its upper floor surface. The middle finger pictogram is arranged on the bottom of the cup so that it is flashed whenever the cup is tilted to drink from, for example. And, more specifically, the middle finger pictogram is juxtaposed with the “People Pleaser in Recovery” phrase so that the pictogram may be flashed while the audience is reading the “People Pleaser in Recovery” phrase. The word “Refill” located inside the mug is there to remind the reader that one must “refill” one's cup to recover from people pleasing.

AR at 157. These phrases, words, and images, when combined with their arrangement on the mug, Plaintiff asserted, constitute sufficient creativity to warrant copyright protection. AR at 157. Moreover, he once again argued that “even shorter, less expressive one line sentences have merited copyright protection, ” citing Universal City Studios, and also contended that important literary works, such as William Carlos Williams' sixteen-word poem “The Red Wheelbarrow, ” “may consist of a single short phrase.” AR at 157-58. Plaintiff concluded by asking for both text and artwork copyrights. AR at 160.

         Defendant denied, in part, this second request for reconsideration on September 27, 2016. AR at 209-13. The five-page decision (“Final Decision”) stated that the work “is not copyrightable as a literary work, ” but that the two-dimensional artwork elements “remain copyrightable.” AR at 209. The Final Decision focused on the requirements for a text copyright. After describing the work and the administrative history of Plaintiff's request, Defendant set forth the requirements for a copyright-namely, that the work must be “original.” AR at 209-11. The “originality” requirement, Defendant explained, has two components: the work must “have been independently created by the author” and it “must possess sufficient creativity.” AR at 210 (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)). It elaborated on these ...

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