Unicolors, Inc. v. Urban Outfitters, Inc., et al


FILED OPINION (RICHARD C. TALLMAN, MICHELLE T. FRIEDLAND and WILLIAM HORSLEY ORRICK) Appellants shall bear the costs of appeal. See Fed. R. App. P. 39(a)(2). AFFIRMED. Judge: WHO Authoring. FILED AND ENTERED JUDGMENT. [10380292]

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Case: 15-55507, 04/03/2017, ID: 10380292, DktEntry: 45-3, Page 1 of 6 About Us News Law and Guidance Policy Issues Contact Us Search Home / Forms Related Information Licensing Forms Registration Portal Notice Notices of Restored Copyrights Please be aware that when you register your claim to a copyright in a work Vessel Registrations with the U.S. Copyright Office, you are making a public record. All the information you provide on your copyright registration is available to the General FAQs about Copyright public and will be available on the Internet. Preguntas frecuentes sobre derechos de autor Paper Forms Group Registrations Additional Forms c. rs, In itte Licensing Forms Outf , 2017 rban 28 . v. U March c Registration with Paper Forms on rs, In c these forms is $85 iofolo archived payable by The fee for a basic registration using Un one ed in -55507 citCON (continuation sheet for applications) is check or money order. Form 17 No.forms are also available by postal mail also still available in paper. Paper upon request. Short forms are no longer available online. Form CON — Continuation Sheet used in conjunction with forms below when more space is necessary. Form CA (Read more), fee: $130 Form CA w/instructions, fee: $130 Renewal — For renewal of claims of copyright Form RE, fee: $100 Form RE/CON — Continuation form to be used only in conjunction with RE application form, fee: $100 Addendum to Form RE — For all works published between January 1, 1964, and December 31, 1977, that were not registered during their first 28-year term. Must accompany form RE, fee: $100 Case: 15-55507, 04/03/2017, ID: 10380292, DktEntry: 45-3, Page 2 of 6 Literary Visual Single Performing Sound Form TX Form VA Serials Arts Recording Form SE Form PA Form SR Subscribe About Us News Overview Federal Register Notices Leadership Resources and Education Academic Partnerships Internships Kaminstein Program Ringer Fellowship Law and NewsNet Guidance Copyright Law Regulations Rulemakings Compendium Forms Circulars | Twitter | Blog | Take our Survey Publications Policy Studies Legislative Developments Congressional Hearings U.S. Copyright Office International Issues 101 Independence Ave. S.E. Register's Speeches (202) 707–3000 or 1 (877) 476–0778 (toll free) Washington, D.C. 20559-6000 c. rs, In itte 17 Outf , Webmaster 20 an . Urb arch 28 c. v o M rs, In CongressnCongress.gov | USA.gov | FOIA | IP/DMCA | Privacy Policy icoloLibrary of ived | Un arch ed in -55507 cit 17 No. Contact Us 4 Case: 15-55507, 04/03/2017, ID: 10380292, DktEntry: 45-3, Page 3 of 6 Form VA Detach and read these instructions before completing this form. Make sure all applicable spaces have been filled in before you return this form. BASIC INFORMATION When to Use This Form: Use Form VA for copyright registration of published or unpublished works of the visual arts. This category consists of “pictorial, graphic, or sculptural works,” including two-dimensional and three-dimensional works of fine, graphic, and applied art; photographs; prints and art reproductions; and maps, globes, charts, technical drawings, diagrams, and models. What Does Copyright Protect? Copyright in a work of the visual arts protects those pictorial, graphic, or sculptural elements that, either alone or in combination, represent an “original work of authorship.” The statute declares: “In no case does copyright protection for an original work of authorship 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.” Works of Artistic Craftsmanship and Designs: You may register “works of artistic craftsmanship” on Form VA, but the statute makes clear that protection extends to “their form” and not to “their mechanical or utilitarian aspects.” The “design of a useful article” is considered copyrightable “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Labels and Advertisements: Works prepared for use in connection with the sale or advertisement of goods and services may be registered if they contain “original work of authorship.” Use Form VA if the copyrightable material in the work you are registering is mainly pictorial or graphic; use Form TX if it consists mainly of text. Note: Words and short phrases such as names, titles, and slogans cannot be protected by copyright, and the same is true of standard symbols, emblems, and other commonly used graphic designs that are in the public domain. When used commercially, material of that sort can sometimes be protected under state laws of unfair competition or under the federal trademark laws. For information about trademark registration, call the U.S. Patent and Trademark Office, at 1-800-786-9199 (toll free) or go to www.uspto.gov. 1 SPACE 1: Title 2 Architectural Works: Copyright protection extends to the design of buildings created for the use of human beings. Architectural works created on or after December 1, 1990, or that on December 1, 1990, were unconstructed and embodied only in unpublished plans or drawings are eligible. Request Circular 41, Copyright Claims in Architectural Works, for more information. Architectural works and technical drawings cannot be registered on the same application. Deposit to Accompany Application: An application for copyright registration must be accompanied by a deposit consisting of copies representing the entire work for which registration is to be made. Unpublished Work: Deposit one complete copy. Published Work: Deposit two complete copies of the best edition. Work First Published Outside the United States: Deposit one complete copy of the first foreign edition. Contribution to a Collective Work: Deposit one complete copy of the best edition of the collective work. The Copyright Notice: Before March 1, 1989, the use of copyright notice was mandatory on all published works, and any work first published before that date should have carried a notice. For works first published on and after March 1, 1989, use of the copyright notice is optional. For more information about copyright notice, see Circular 3, Copyright Notice. For Further Information: To speak to a Copyright Office staff member, call (202) 707-3000 or 1-877-476-0778 (toll free). Recorded information is available 24 hours a day. Order forms and other publications from the address in space 9 or call (202) 707-9100 or 1-877-476-0778 (toll free). Access and download circulars, forms, and other information from the Copyright Office website at www.copyright.gov. c. rs, In itte Outf , 2017 rban 28 . v. U March c rs, In ed on icolo archivINSTRUCTIONS Un LINE-BY-LINE ed in or55507black ink. The form is used to produce the certificate. cit Please type - print using 17 No. Name of Author: The fullest form of the author’s name should be given. SPACE 2: Author(s) Title of This Work: Every work submitted for copyright registration must be given a title to identify that particular work. If the copies of the work bear a title (or an identifying phrase that could serve as a title), transcribe that wording completely and exactly on the application. Indexing of the registration and future identification of the work will depend on the information you give here. For an architectural work that has been constructed, add the date of construction after the title; if unconstructed at this time, add “not yet constructed.” Publication as a Contribution: If the work being registered is a contribution to a periodical, serial, or collection, give the title of the contribution in the “Title of This Work” space. Then, in the line headed “Publication as a Contribution,” give information about the collective work in which the contribution appeared. Nature of This Work: Briefly describe the general nature or character of the pictorial, graphic, or sculptural work being registered for copyright. Examples: “Oil Painting”; “Charcoal Drawing”; “Etching”; “Sculpture”; “Map”; “Photograph”; “Scale Model”; “Lithographic Print”; “Jewelry Design”; “Fabric Design.” Previous or Alternative Titles: Complete this space if there are any additional titles for the work under which someone searching for the registration might be likely to look, or under which a document pertaining to the work might be recorded. General Instruction: After reading these instructions, decide who are the “authors” of this work for copyright purposes. Then, unless the work is a “collective work,” give the requested information about every “author” who contributed any appreciable amount of copyrightable matter to this version of the work. If you need further space, request Continuation Sheets (Form CON). In the case of a collective work, such as a catalog of paintings or collection of cartoons by various authors, give information about the author of the collective work as a whole. Unless the work was “made for hire,” the individual who actually created the work is its “author.” In the case of a work made for hire, the statute provides that “the employer or other person for whom the work was prepared is considered the author.” What Is a “Work Made for Hire”? A “work made for hire” is defined as: (1) “a work prepared by an employee within the scope of his or her employment”; or (2) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” If you have checked “Yes” to indicate that the work was “made for hire,” you must give the full legal name of the employer (or other person for whom the work was prepared). You may also include the name of the employee along with the name of the employer (for example: “Elster Publishing Co., employer for hire of John Ferguson”). “Anonymous” or “Pseudonymous” Work: An author’s contribution to a work is “anonymous” if that author is not identified on the copies or phonorecords of the work. An author’s contribution to a work is “pseudonymous” if that author is identified on the copies or phonorecords under a fictitious name. If the work is “anonymous” you may: (1) leave the line blank; or (2) state “anonymous” on the line; or (3) reveal the author’s identity. If the work is “pseudonymous” you may: (1) leave the line blank; or (2) give the pseudonym and identify it as such (for example: “Huntley Haverstock, pseudonym”); or (3) reveal the author’s name, making clear which is the real name and which is the pseudonym (for example: “Henry Leek, whose pseudonym is Priam Farrel”). However, the citizenship or domicile of the author must be given in all cases. Dates of Birth and Death: If the author is dead, the statute requires that the year of death be included in the application unless the work is anonymous or pseudonymous. The author’s birth date is optional but is useful as a form of identification. Leave this space blank if the author’s contribution was a “work made for hire.” Case: 15-55507, 04/03/2017, ID: 10380292, DktEntry: 45-3, Page 4 of 6 Author’s Nationality or Domicile: Give the country of which the author is a citizen or the country in which the author is domiciled. Nationality or domicile must be given in all cases. Nature of Authorship: Categories of pictorial, graphic, and sculptural authorship are listed below. Check the box(es) that best describe(s) each author’s contribution to the work. 3-Dimensional sculptures: Fine art sculptures, toys, dolls, scale models, and sculptural designs applied to useful articles. 2-Dimensional artwork: Watercolor and oil paintings; pen and ink drawings; logo illustrations; greeting cards; collages; stencils; patterns; computer graphics; graphics appearing in screen displays; artwork appearing on posters, calendars, games, commercial prints and labels, and packaging; artwork applied to useful articles; designs reproduced on textiles, lace, and other fabrics and on wallpaper, carpeting, floor tile, wrapping paper, and clothing. Reproductions of works of art: Reproductions of preexisting artwork made by, for example, lithography, photoengraving, or etching. Maps: Cartographic representations of an area, such as state and county maps, atlases, marine charts, relief maps, and globes. Photographs: Pictorial photographic prints and slides and holograms. Jewelry designs: 3-dimensional designs applied to rings, pendants, earrings, necklaces, and the like. Technical drawings: Diagrams illustrating scientific or technical information in linear form, such as architectural blueprints or mechanical drawings. Text: Textual material that accompanies pictorial, graphic, or sculptural works, such as comic strips, greeting cards, game rules, commercial prints or labels, and maps. Architectural works: Designs of buildings, including the overall form as well as the arrangement and composition of spaces and elements of the design. NOTE: You must apply for registration for the underlying architectural plans on a separate Form VA. Check the box “Technical drawing.” 3 SPACE 3: Creation and Publication SPACE 4: Claimant(s) Name(s) and Address(es) of Copyright Claimant(s): Give the name(s) and address(es) of the copyright claimant(s) in this work even if the claimant is the same as the author. Copyright in a work belongs initially to the author of the work, including, in the case of a work made for hire, the employer or other person for whom the work was prepared. The copyright claimant is either the author of the work or a person or organization to whom the copyright initially belonging to the author has been transferred. Transfer: The statute provides that, if the copyright claimant is not the author, the application for registration must contain “a brief statement of how the claimant obtained ownership of the copyright.” If any copyright claimant named in space 4 is not an author named in space 2, give a brief statement explaining how the claimant(s) obtained ownership of the copyright. Examples: “By written contract”; “Transfer of all rights by author”; “Assignment”; “By will.” Do not attach transfer documents or other attachments or riders. 5 6 SPACE 6: Derivative Work or Compilation General Instructions: Complete space 6 if this work is a “changed version,”“compilation,” or “derivative work,” and if it incorporates one or more earlier works that have already been published or registered for copyright, or that have fallen into the public domain. A “compilation” is defined as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” A “derivative work” is “a work based on one or more preexisting works.” Examples of derivative works include reproductions of works of art, sculptures based on drawings, lithographs based on paintings, maps based on previously published sources, or “any other form in which a work may be recast, transformed, or adapted.” Derivative works also include works “consisting of editorial revisions, annotations, or other modifications” if these changes, as a whole, represent an original work of authorship. Preexisting Material (space 6a): Complete this space and space 6b for derivative works. In this space identify the preexisting work that has been recast, transformed, or adapted. Examples of preexisting material might be “Grunewald Altarpiece” or “19th century quilt design.” Do not complete this space for compilations. Material Added to This Work (space 6b): Give a brief, general statement of the additional new material covered by the copyright claim for which registration is sought. In the case of a derivative work, identify this new material. Examples: “Adaptation of design and additional artistic work”; “Reproduction of painting by photolithography”; “Additional cartographic material”; “Compilation of photographs.” If the work is a compilation, give a brief, general statement describing both the material that has been compiled and the compilation itself. Example: “Compilation of 19th century political cartoons.” c. rs, In itte Outf , 2017 rban 28 . v. U March c on rs, In icolo archived Un ed in -55507 cit 17 No. General Instructions: Do not confuse “creation” with “publication.” Every application for copyright registration must state “the year in which creation of the work was completed.” Give the date and nation of first publication only if the work has been published. Creation: Under the statute, a work is “created” when it is fixed in a copy or phonorecord for the first time. If a work has been prepared over a period of time, the part of the work existing in fixed form on a particular date constitutes the created work on that date. The date you give here should be the year in which the author completed the particular version for which registration is now being sought, even if other versions exist or if further changes or additions are planned. Publication: The statute defines “publication” as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending”; a work is also “published” if there has been an “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” Give the full date (month, day, year) when, and the country where, publication first occurred. If first publication took place simultaneously in the United States and other countries, it is sufficient to state “U.S.A.” 4 Same Version: If this version is substantially the same as the work covered by a previous registration, a second registration is not generally possible unless: (1) the work has been registered in unpublished form and a second registration is now being sought to cover this first published edition; or (2) someone other than the author is identified as a copyright claimant in the earlier registration, and the author is now seeking registration in his or her own name. If either of these two exceptions applies, check the appropriate box and give the earlier registration number and date. Otherwise, do not submit Form VA. Instead, write the Copyright Office for information about supplementary registration or recordation of transfers of copyright ownership. Changed Version: If the work has been changed and you are now seeking registration to cover the additions or revisions, check the last box in space 5, give the earlier registration number and date, and complete both parts of space 6 in accordance with the instruction below. Previous Registration Number and Date: If more than one previous registration has been made for the work, give the number and date of the latest registration. SPACE 5: Previous Registration General Instructions: The questions in space 5 are intended to find out whether an earlier registration has been made for this work and, if so, whether there is any basis for a new registration. As a rule, only one basic copyright registration can be made for the same version of a particular work. 7 8,9 , SPACE 7, 8, 9: Fee, Correspondence, Deposit Account: If you maintain a deposit account in the Copyright Office, identify it in space 7a. Otherwise, leave the space blank and send the fee with your application and deposit. Correspondence (space 7b): Give the name, address, area code, telephone number, email address, and fax number (if available) of the person to be consulted if correspondence about this application becomes necessary. Certification (space 8): The application cannot be accepted unless it bears the date and the handwritten signature of the author or other copyright claimant, or of the owner of exclusive right(s), or of the duly authorized agent of the author, claimant, or owner of exclusive right(s). Address for Return of Certificate (space 9): The address box must be completed legibly since the certificate will be returned in a window envelope. PRIVACY ACT ADVISORY STATEMENT Required by the Privacy Act of 1974 (P.L. 93 - 579) The authority for requesting this information is title 17 U.S.C. §409 and §410. Furnishing the requested information is voluntary. But if the information is not furnished, it may be necessary to delay or refuse 4 and 5 of title 17 U.S.C. NOTE: Case: 15-55507, 04/03/2017, ID: 10380292, DktEntry: 45-3, Page 5 of 6 3 Form VA For a Work of the Visual Arts UNITED STATES COPYRIGHT OFFICE at www.copyright.gov, or call (202) 707-3000 or 1-877-476-0778 (toll free). REGISTRATION NUMBER Privacy Act Notice: Sections 408-410 of title 17 of the United States Code information requested on this form in order to process the application for copyright registration. By providing this information you are agreeing to routine uses of the information that include publication to give legal notice of your copyright claim as required by 17 U.S.C. the information requested, registration may be refused or delayed, under the copyright law. DO NOT WRITE ABOVE THIS LINE. IF YOU NEED MORE SPACE, USE A SEPARATE CONTINUATION SHEET. TITLE OF THIS WORK 1 NATURE OF THIS WORK See instructions PREVIOUS OR ALTERNATIVE TITLES PUBLICATION AS A CONTRIBUTION If this work was published as a contribution to a periodical, serial, or collection, give information about the collective work in which the contribution appeared. Title of Collective Work If published in a periodical or serial give: Volume 2 c. rs, In itte Citizen of Outf , 2017 OR{ rban 28 Pseudonymous? Domiciled in No . v. U March c NATURE OF AUTHORSHIP Check appropriate box(es). , In o rs See instructions n icolo archived 3-Dimensional sculpture Map Technical drawing n U 7 Photograph ed in -5 2-Dimensional artwork 550 Text cit 17of art Reproduction of work Jewelry design Architectural work No. WAS THIS CONTRIBUTION TO THE WORK A “WORK MADE FOR HIRE”? Yes the “author” of (see instructions). For any AUTHOR’S NATIONALITY OR DOMICILE Name of Country NAME OF AUTHOR WAS THIS AUTHOR’S CONTRIBUTION TO THE WORK Anonymous? Yes No of these questions DATES OF BIRTH AND DEATH Year Born b WAS THIS CONTRIBUTION TO THE WORK A “WORK MADE FOR HIRE”? Yes No as “Author” of AUTHOR’S NATIONALITY OR DOMICILE Name of Country { OR Citizen of Domiciled in No instructions. Year Died WAS THIS AUTHOR’S CONTRIBUTION TO THE WORK Anonymous? Yes No of these questions Pseudonymous? 3-Dimensional sculpture Yes No instructions. Technical drawing Photograph Text Reproduction of work of art Jewelry design Architectural work YEAR IN WHICH CREATION OF THIS WORK WAS COMPLETED This information must be given in all cases. DATE AND NATION OF FIRST PUBLICATION OF THIS PARTICULAR WORK b Complete this information ONLY if this work has been published. Nation COPYRIGHT CLAIMANT(S) Name and address must be given even if the claimant is the same as the author given in space 2. TRANSFER If the claimant(s) named here in space 4 is (are) different from the author(s) named in space 2, give a brief statement of how the claimant(s) obtained ownership of the copyright. MORE ON BACK • • See detailed instructions. A DO NOT WRITE HERE OFFICE USE ONLY a Map 2-Dimensional artwork of birth and See instructions Yes NATURE OF AUTHORSHIP Check appropriate box(es). See instructions leave the 3 4 On Pages DATES OF BIRTH AND DEATH Year Born Year Died a for hire” is generally the (or other Issue Date NAME OF AUTHOR NOTE “made for hire,” Number DO NOT WRITE HERE • Sign the form at line 8. Case: 15-55507, 04/03/2017, ID: 10380292, DktEntry: 45-3, Page 6 of 6 FORM VA DO NOT WRITE ABOVE THIS LINE. IF YOU NEED MORE SPACE, USE A SEPARATE CONTINUATION SHEET. PREVIOUS REGISTRATION Has registration for this work, or for an earlier version of this work, already been made in the Copyright Office? Yes No If your answer is “Yes,” why is another registration being sought? (Check appropriate box.) a. This is the first published edition of a work previously registered in unpublished form. b. This is the first application submitted by this author as copyright claimant. c. This is a changed version of the work, as shown by space 6 on this application. If your answer is “Yes,” give: Previous Registration Number Year of Registration 5 DERIVATIVE WORK OR COMPILATION Complete both space 6a and 6b for a derivative work; complete only 6b for a compilation. a. Preexisting Material Identify any preexisting work or works that this work is based on or incorporates. a 6 See instructions b. Material Added to This Work Give a brief, general statement of the material that has been added to this work and in which copyright is claimed. b c. rs, In itte Outf , 2017 rban 28 . v. U March c n CORRESPONDENCE Give name and address to which correspondencers, Ithis application should be sent. Name/Address/Apt/City/State/Zip about on icolo archived Un ed in -55507 cit 17 No. DEPOSIT ACCOUNT If the registration fee is to be charged to a Deposit Account established in the Copyright Office, give name and number of Account. Name Account Number Area code and daytime telephone number ( ) Fax number ( a 7 b ) Email CERTIFICATION* I, the undersigned, hereby certify that I am the check only one { 8 author other copyright claimant owner of exclusive right(s) authorized agent of of the work identified in this application and that the statements made by me in this application are correct to the best of my knowledge. Typed or printed name and date If this application gives a date of publication in space 3, do not sign and submit it before that date. Date Handwritten signature (X) X YOU MUST: Name will be mailed in window envelope to this address: SEND ALL 3 ELEMENTS IN THE SAME PACKAGE: 1. 2. 3. MAIL TO: 9

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