Ashton v. United States Copyright Office et al

First MOTION for Summary Judgment

D.D.C.May 9, 2017

(1) UNITED STATES DISCTRICT AND BANKRUMPTCY COURTS FOR THE DISTRICT OF COLUMBIA __________________________________________ ) WESLEY SCOTT ASHTON ) ) Plaintiff ) ) C.A. No. 1:16-cv-02305 (APM) v. ) ) UNITED STATES COPYRIGHT OFFICE ) ) Defendant ) ) and ) ) KARYN TEMPLE CLAGGETT, ) Acting Register of Copyrights ) ) Defendant ) __________________________________________) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT UNDER FED.R.CIV.P. 56(c) 1. Comes now Plaintiff pro se, Wesley Scott Ashton (“Dr. Ashton” or “Plaintiff”), filing this Motion for Summary Judgment under Fed. R. Civ. P. 56(c)(hereinafter “Motion for Summary Judgment”) as to all claims in the Complaint against Defendants United States Copyright Office (“Copyright Office”) and Karyn Temple Claggett (“Claggett”), Acting Register of Copyrights, or collectively “Defendants.” This Motion for Summary Judgment is filed on or before May 12, 2017 in accordance with this Court’s order of March 13, 2017. 2. Prior to filing this Motion for Summary Judgment, Plaintiff contacted Conrad J. DeWitte, Jr. (202-307-0459), counsel for Defendants, via telephone on May 2, 2017 to discuss this suit. Case 1:16-cv-02305-APM Document 13 Filed 05/09/17 Page 1 of 2 (2) Although an agreement was not reached, it was agreed the issues are ripe for this Court’s consideration on Motion for Summary Judgment. 3. Plaintiff files herewith his Memorandum of Points and Authorities Supporting Plaintiff’s Motion for Summary Judgement (hereinafter, “Memorandum”). For reasons evinced in the Memorandum, this Court should grant Plaintiff’s Motion for Summary Judgment and (i) reverse Defendant’s ruling regarding refusal to grant copyright registration for the text of the “People Pleaser” work because this Court should find that the text of the People Pleaser work possesses substantial creativity sufficient to merit copyright registration and because Defendants’ refusal to grant copyright registration for the text constitutes an abuse of discretion, is a decision not based on substantial evidence, and is a decision not based on reasoned decisionmaking, and (ii) this Court should remand the matter back to Defendants for further proceedings consistent with the Court’s findings of fact and rulings of law, and (iii) grant any additional relief this Court deems just and proper. Respectfully submitted, Dated: May 9, 2017 ______________________________ Wesley Scott Ashton, Plaintiff pro se 72 Treetop Court Bloomingdale, New Jersey 07403 wesashton@aol.com Telephone: 571-338-0414 Case 1:16-cv-02305-APM Document 13 Filed 05/09/17 Page 2 of 2 (1) UNITED STATES DISCTRICT AND BANKRUMPTCY COURTS FOR THE DISTRICT OF COLUMBIA __________________________________________ ) WESLEY SCOTT ASHTON ) ) Plaintiff ) ) C.A. No. 1:16-cv-02305 (APM) v. ) ) UNITED STATES COPYRIGHT OFFICE ) ) Defendant ) ) and ) ) KARYN TEMPLE CLAGGETT, ) Acting Register of Copyrights ) ) Defendant ) __________________________________________) MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1. Plaintiff pro se, Wesley Scott Ashton (“Dr. Ashton” or “Plaintiff”), respectfully submits this memorandum of law in support of his motion for summary judgment as to all claims in the Complaint against Defendants United States Copyright Office (“Copyright Office”) and Karyn Temple Claggett (“Claggett”), Acting Register of Copyrights, or collectively “Defendants.” Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 1 of 22 (2) TABLE OF CONTENTS PRELIMINARY STATEMENT………………………………………………………….. 4 STATEMENT OF MATERIAL FACTS…………………………………...……………. 4 STATEMENT OF THE CASE……………………………………………………………. 13 STANDARD OF REVIEW……………………………………………………………….. 13 ARGUMENT...…………………………………………………………………………….. 14 1. CONTENT OF DR. ASHTON’S POETIC WORK OF FICTION IS SUFFICIENTLY CREATIVE TO MERIT COPYRIGHT REGISTRATION SO DEFENDANTS’UNSUPPORTED CONCLUSION TO THE CONTRARY CONSTITUTES REVERSIBLE ERROR……………………………………………………………………… 14 2. THE ARRANGEMENT OF ELEMENTS ADDS SIGNIFICANTLY TO THE SUBSTANTIAL CREATIVITY OF DR. ASHTON’S POETIC WORK OF FICTION, WHICH DEFENDANTS HAVE IGNORED, WHICH CONSTITUTES REVERSIBLE ERROR…………………………………………………..…. 18 3. Dr. ASHTON’S MIDDLE FINGER PICTOGRAM CONSTITUTES AN ELEMENT OF A “LITERARY WORK” DEFINED BY 17 U.S.C. § 101 SO ANY RULING BY DEFENDANTS TO THE CONTRARY CONSTITUTES REVERSIBLE ERROR…………………………………… 20 CONCLUSION………………………………………………………………………….. 22 Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 2 of 22 (3) TABLE OF AUTHORITIES CASELAW Atari Games Corp. v. Oman, 888 F.2d 878 (D.C.Cir.1989)…………………..14 Boy Scouts of Am. v. Wyman, 335 F.3d 80 (2d Cir.2003)…………………..…13 *Dickinson v. Zurko, 527 U.S. 150 (1999)……………………..……………..14, 18 *Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)………..……15, 16, 18 *Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162(S.D. Texas 1982)…………………………………8, 9, 11-13, 17, 18 STATUTES 5 U.S.C. § 704…………………………………………………………………11 5 U.S.C. §§ 706(2)(A) and (E)………………………………………………..4, 14 17 U.S.C. § 101………………………………………………………………..10, 19-21 17 U.S.C. § 701(e)……………………………………………………………..14 RULES Fed.R.Civ.P. 56(c)……………………………………………………………...13 Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 3 of 22 (4) PRELIMINARY STATEMENT 2. Dr. Ashton is author of a creative work titled “People Pleaser,” which includes artwork and text. The text constitutes a three line poem and is a creative work of fiction. Copyright Office received Dr. Ashton’s copyright registration application for the work on March 19, 2012. On February 6, 2017, Copyright Office certified registration of Dr. Ashton’s claim to copyright with respect to 2-dimensional artwork and arrangement of text and artwork as a visual work. On September 27, 2016, Copyright Office rendered a final decision refusing to register copyright in the text as a literary work on the sole grounds that the poem allegedly lacks “sufficient creativity.” Dr. Ashton seeks relief through judicial review of Defendants’ final decision under 5 U.S.C. §§ 706(2)(A) and (E) of the Administrative Procedures Act “(APA”), and reversal of Defendant’s decision refusing to register the three line poem as a literary work, because Defendants’ decision is arbitrary, capricious and/or constitutes an abuse of discretion, is not based on reasoned decision-making, is not based on substantial evidence, and fails to intelligibly account for the ruling. STATEMENT OF MATERIAL FACTS 3. Dr. Ashton, a United States citizen, has a residence at 8549 Blackfoot Court, Lorton, Virginia, 22079. Ashton-AR-222. Defendant Copyright Office is an agency of the federal government of the United States of America, having its principal office at 101 Independence Avenue SE, Washington, DC, 20559, and Defendant Claggett is Acting Register of Copyrights for the United States Copyright Office. Complaint, ¶¶ 2 and 3; Answer, ¶¶ 2 and 3. 4. On March 19, 2012, Copyright Office received Dr. Ashton’s copyright registration application for the work titled “People Pleaser,” which sought copyright registration for 2- dimensional artwork and for text of the work. Complaint, ¶ 6; Answer, ¶ 6. Copyright Office Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 4 of 22 (5) granted copyright registration for 2-dimensional artwork and for “arrangement of text and artwork as a visual work contained in deposit;” however, Copyright Office refused to grant copyright registration as to text alone as a literary work on the grounds that “the individual textual elements of the Work and the selection, coordination, and arrangement of those elements fail to satisfy the requirement of creative authorship.” Ashton-AR-212; Ashton-AR-222. 5. People Pleaser pertains to a mug having various words and images applied to it’s surface, and includes (i) a yellow flower with irregularly-shaped petals and three butterflies with yellow wings, (ii) a red stripe applied to the lip of the mug, (iii) a red stick-figure raised drawing of a lizard, and (iv) a drawing of a human hand with the middle finger extended on the exterior bottom surface of the mug. Ashton-AR-209; Ashton-AR-214 to Ashton-AR-220. 6. People Pleaser includes text characterized by Dr. Ashton as “a three line poem” written on the surface of the work. Complaint, ¶ 35; Answer, ¶ 35. Each line is located on a different surface. Ashton-AR-157. The three surfaces, including their corresponding lines, are as follows: Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 5 of 22 (6) Ashton-AR-003, Ashton-AR-004; Ashton-AR-013; Ashton-AR-012. 7. The work includes the phrase “People Pleaser in Recovery” appearing on the exterior curved surface of the mug, and the drawing of a human hand with middle finger extended appearing on the exterior bottom surface of the mug, and the word “Refill” located on the flat bottom interior surface of the mug. Complaint, ¶ 9; Answer, ¶9. These three lines, and their arrangement, constitute Dr. Ashton’s asserted literary work. Ashton-AR-154; Ashton-AR-159. Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 6 of 22 (7) 8. In a letter of July 3, 2013, the Copyright Office refused to register copyright for the “People Pleaser” work. Ashton-AR-043 to Ashton-AR-044. In the July 3, 2013 letter, Copyright Office states “the text you wish to register is minimal and is not copyrightable.” Ashton-AR-043. The Copyright Office also states “a literary work must contain a minimum amount of text. Copyright does not protect familiar symbols or designs; basic geometrical shapes; words and short phrases such as names, titles, and slogans; or mere variations of typographic ornamentation, lettering or coloring.” Ashton-AR-043. Copyright Office provided no further statements in support of its refusal to register copyright to the text. 9. Dr. Ashton filed Applicant’s First Request for Reconsideration (“First Request”), dated September 20, 2013, with Copyright Office. Ashton-AR-046. The First Request was filed with Exhibits A, B, C, D and E. Ashton-AR-046 to Ashton-AR-146. 10. The First Request requested reconsideration of the decision to refuse copyright registration because the Copyright Office “completely fails to articulate a single credible reason to justify refusal of copyright registration for the People Pleaser work.” Ashton-AR-047. Dr. Ashton argued “the text is creatively arranged on the cup in three dimensions.” Ashton-AR-049. Dr. Ashton argued “the Copyright Office provides no analysis whatsoever regarding the creativity demonstrated by the arrangement of the text and regarding the creativity demonstrated by the association of the art work and the text.” Ashton-AR-050. 11. In the First Response, Dr. Ashton argued “the text, and its literary arrangement, shows more than the requisite minimum degree of creativity” because the literary work “constitutes three phrases working together to express an idea,” namely, the phrase “People Pleaser in Recovery” located on the cup’s side, the pictogram, , located on the bottom of the cup, and Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 7 of 22 (8) the word “Refill” located inside the cup, and juxtaposed so that tilting the cup flashes the pictogram for a humorous literary effect. Ashton-AR-051 to Ashton-AR-052. Dr. Ashton argued “it is not merely the fact that the literary work includes three phrases, but it is the creative arrangement of these phrases that fully express the idea.” Ashton-AR-052. 12. Dr. Ashton cited Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162, 1166 (S.D. Texas 1982) for the proposition that short phrases such as “I love you E.T.” and “E.T. Phone Home” may merit copyright protection. Ashton-AR-052. Dr. Ashton argued the People Pleaser work contained three phrases that, when taken together, merited copyright protection for at least the reasons that such shorter, less expressive, one line sentences from the E.T. movie merited copyright protection. Ashton-AR-052. Copyright Office never addressed this argument or cited case law. 13. Dr. Ashton argued the “raised middle index finger is a gesture having particularly vulgar connotations,” and in support of this contention Dr. Ashton filed Exhibit C, a copy of an article by Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 UC DAVIS LAW REVIEW 1403-1485 (2008). Ashton-AR-052 and Ashton-AR-061 to Ashton-AR-143. Dr. Ashton argued the pictogram of this gesture demonstrates sufficient creativity to merit copyright when arranged with the other text of the literary People Pleaser work. Ashton-AR-052. 14. Dr. Ashton argued the pictogram constitutes copyrightable text and copyrightable artwork because the earliest forms of literature were pictograms as evident from “Writing,” at http://www.mesopotamia.co.uk/writing/home_set.html (last visited July 24, 2012), of record as Exhibit D, and later writings evolved to script fixed in fired clay, as evident from “Cuneform Tablets: About the Collection,” at http://memory.loc.gov/intldl/cuneithml/about.html (last visited Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 8 of 22 (9) July 24, 2012), of record as Exhibit E. Ashton-AR-053, Ashton-AR-054, and Ashton-AR-144 to Ashton-AR-146. 15. Dr. Ashton argued “no one has ever used a bottom surface of a mug for text to express an idea in combination with text on the side of the mug,” and “[t]his three dimensional arrangement of words and indicia or symbols (i.e., a pictogram) creates a certain literary effect that demonstrates more than a minimum level of creativity required for copyright.” Ashton-AR-054. Dr. Ashton argued “the three dimensional arrangement of the words, in the form of both script and pictogram, adds to the creativity of the literary work.” Ashton-AR-054. 16. On January 9, 2014, Copyright Office issued a letter (“Mason’s Letter”) in response to Dr. Ashton’s First Request. Ashton-AR-149 to Ashton-AR-152; Complaint, Exhibit 11. In Mason’s Letter, Copyright Office concluded the text of the “People Pleaser” work was limited to the word “Refill” and the short phrase “People Pleaser in Recovery,” and that “[w]e view the middle finger as 2D artwork, not text.” Ashton-AR-150. Copyright Office proffered no explanation for these conclusions. 17. In Mason’s Letter, Copyright Office wrote “[i]n our view, the textual elements in this work do not reflect a sufficient amount of original and creative authorship upon which to support a copyright registration in text.” Ashton-AR-163. Copyright Office also wrote ‘[e]ven the combination and arrangement of the word and short phrase is not sufficiently creative to constitute a copyrightable “work of art.”’ Ashton-AR-163. Mason’s Letter did not address Dr. Ashton’s argument based on Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162, 1166 (S.D. Texas 1982), and it did not consider any of Exhibits B, C, D and E filed by Dr. Ashton as evidence in favor of copyrightability. Mason’s Letter did not consider the Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 9 of 22 (10) arrangement of text, including the pictogram, when analyzing whether the text of the work possessed sufficient creativity to merit copyright registration. 18. In response to Mason’s Letter, Dr. Ashton filed Applicant’s Second Request for Reconsideration (hereinafter “Second Request”) with Copyright Office. Ashton-AR-153 to Ashton-AR-161. The Second Request was dated April 4, 2014 and was filed with Exhibits A1, A2, A3 and A4. Ashton-AR-162 to Ashton-AR-206. 19. In the Second Request, Dr. Ashton argued the text of the People Pleaser work included three phrases, namely, two script phrases and one pictogram phrase. Ashton-AR-154. Dr. Ashton argued the Copyright Office failed to construe the pictogram as text. Ashton-AR-154 to Ashton-AR-0155. Dr. Ashton argued the pictogram constitutes a word, symbol or indicia that should be construed as text in accordance with 17 U.S.C. § 101, and in support of this argument, Dr. Ashton asserted Exhibits C, D and E. Ashton-AR-155. 20. In the Second Request, Dr. Ashton argued that, for the People Pleaser work, the “text and its literary 3-D arrangement shows more than the requisite minimum degree of creativity” to justify copyright registration. Ashton-AR-157. Dr. Ashton argued “the present literary work does not constitute just one short phrase and a word. It constitutes three phrases working together to express an idea in a poetic manner that possesses a sufficient amount of creativity to merit copyright protection as text.” Ashton-AR-157. Dr. Ashton argued the People Please work includes two script phrases and one pictogram phrase, namely, the phrase “People Pleaser in Recovery” located on the side of the cup, the middle finger pictogram arranged on the bottom of the cup, and the word “Refill” located inside the cup. Ashton-AR-157. Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 10 of 22 (11) 21. In the Second Request, Dr. Ashton argued “[t]he text of the People Pleaser work, when properly construed, constitutes a three line poem, whose content alone manifests substantially more that the requisite amount of creativity to merit copyright protection as text.” Ashton-AR- 157. In support of this argument, Dr. Ashton cited Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162, 1166 (S.D. Texas 1982), in which short phrases “I love you E.T.” and “E.T. Phone Home” were deemed subject to copyright protection as stand-alone text. Ashton-AR-157 to Ashton-AR-158. Dr. Ashton submitted a copy of The Red Wheelbarrow, a famous poem by William Carlos Williams, as Exhibit A4, as evidence a short phrase, by its text and its arrangement of text, may constitute a highly creative poetic literary work. Ashton-AR- 158, Ashton-AR-204 to Ashton-AR-206. 22. In the Second Request, Dr. Ashton argued “the Copyright Office failed to give copyrightable weight to the creative arrangement of Applicant’s text.” Ashton-AR-158. Dr. Ashton argued the People Pleaser work is “not a compilation of facts” but a “highly creative poem.” Ashton-AR-158. Dr. Ashton argued the arrangement of text and pictogram is highly creative because the pictogram is not in view until a person tilts the mug towards themselves, thereby flashing the bottom of the mug towards an observer previously exposed to just the “People Pleaser in Recovery” phrase arranged on the side of the mug, which surprises the reader for dramatic literary effect in order to amuse or insult. Ashton-AR-158 and Ashton-AR-159. 23. In a letter of September 27, 2016 (“Board Letter”), the Copyright Office agreed to register the People Pleaser work as two-dimensional artwork, although the Copyright Office refused registration of the text alone of the People Pleaser work. Ashton-AR-209. The Board Letter constitutes “final agency action” under the Administrative Procedure Act, 5 U.S.C. § 704. Complaint, ¶ 39; Answer, ¶ 39. Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 11 of 22 (12) 24. In the Board Letter, Copyright Office acknowledged Dr. Ashton’s arguments regarding the textual elements of the work including the phrase “People Pleaser in Recovery,” the pictogram of a human hand with middle finger extended, and the word “Refill.” Ashton-AR- 210. The Copyright Office acknowledged Dr. Ashton’s argument that, when taken together, these three elements constitute a three line poem that “manifests substantially more than the requisite amount of creativity to merit copyright protection as text.” Ashton-AR-210. Copyright Office acknowledged Dr. Ashton’s argument that the physical arrangement of these elements on the mug, namely, the phrase “People Pleaser in Recovery” placed on the side, and the middle finger pictogram placed on the bottom, and the word “Refill” placed inside the mug, is highly original and possesses the necessary requisite degree of creativity to render the text copyrightable. Ashton-AR-210. 25. The Board concluded that none of the Work’s constituent textual elements, namely, the phrase “People Pleaser in Recovery” and the word “Refill,” considered individually is sufficiently creative to warrant protection. Ashton-AR-212. As for the pictogram located on the bottom of the mug, the Board concluded this content is de minimis. Ashton-AR-212. 26. Copyright Office analyzed the poem consisting of “People Pleaser in Recovery. [PICTOGRAM.] Refill.” Ashton-AR-212. Copyright Office concluded these three elements taken as a whole fail to meet the creativity threshold set forth in Feist for a work of authorship of any kind, literary or otherwise. Ashton-AR-212. Copyright Office did not provide an analysis of creativity to explain why these three phrases together lack sufficient creativity to copyright. 27. Copyright Office was silent regarding Exhibit A4, which Dr. Ashton filed as substantial evidence that a single phrase may constitute a highly creative poem. Ashton-AR-204 to Ashton- AR-206. Copyright Office was also silent regarding Universal City Studios, Inc. v. Kamar Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 12 of 22 (13) Industries, Inc., 217 U.S.P.Q. 1162, 1166 (S.D. Texas 1982), in which the short phrases “I love your E.T.” and “E.T. Phone Home” were deemed subject to copyright protection as stand-alone text. Ashton-AR-157 to Ashton-AR-158. STATEMENT OF THE CASE 28. Dr. Ashton applied for copyright registration with Copyright Office, requesting protection for text and artwork for his People Pleaser work. Copyright Office registered the artwork, and the text in combination with the artwork; however, Copyright Office refused to register copyright for text alone on the unsupported grounds the text lacks sufficient creativity. The text constitutes a three line poem—a work of pure imaginary fiction. Defendants, in denying copyright for Dr. Ashton’s poetic work of fiction, failed to intelligently account for the ruling because Defendants have not considered the creative content and creative arrangement of the text of this poetic work and because Defendants have failed to consider all arguments and evidence Dr. Ashton proffered to show that sufficient creativity of the text is present to merit copyright registration of the poem as a literary work. As a result, Defendants have committed multiple reversible errors when they failed to intelligently account for the ruling denying copyright registration of the text of the creative poem as a literary work. STANDARD OF REVIEW 29. A court may only grant summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling upon cross-motions for summary judgment, the court must evaluate each motion separately and must draw all reasonable inferences against the party whose motion is under consideration. See Boy Scouts of Am. v. Wyman, 335 F.3d 80, 88 (2d Cir.2003). Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 13 of 22 (14) 30. Pursuant to 17 U.S.C. § 701(e), the decision of the Register of Copyrights to deny an application for registration is reviewable under the APA, which provides that a court may set aside agency action where it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A). A court should set aside any agency action that fails to intelligibly account for its ruling or if the agency decision is not the product of "reasoned decisionmaking." Atari Games Corp. v. Oman, 888 F.2d 878, 879 (D.C.Cir.1989). Furthermore, agency decisions should be set aside when the decisions are not supported by substantial evidence. Dickinson v. Zurko, 527 U.S. 150, 164 (1999). ARGUMENT 1. CONTENT OF DR. ASHTON’S POETIC WORK OF FICTION IS SUFFICIENTLY CREATIVE TO MERIT COPYRIGHT REGISTRATION SO DEFENDANTS’ UNSUPPORTED CONCLUSION TO THE CONTRARY CONSTITUTES REVERSIBLE ERROR 31. The only grounds Defendants proffer for denying copyright registration of the text as a literary work is that the text allegedly does not possess sufficient creativity to merit copyright. Ashton-AR-212. Dr. Ashton argued the text forms a highly creative poem. Ashton-AR-153 to Ashton-AR-160. Dr. Ashton’s poem is a work of fiction consisting of three lines, each line disposed on a separate surface of a mug. Defendants do not dispute the work is a poem, and Defendants have not asserted the poem constitutes a work of non-fiction. Despite these facts, Defendants conclude the poem lacks sufficient creativity to merit copyright registration, although Defendants never fully analyzed the content of the entire poem for creativity. For this reason alone, this court should rule Defendants’ decision regarding the poem’s alleged insufficient creativity is an abuse of discretion because Defendants have not made a prima facie case regarding insufficient creativity. Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 14 of 22 (15) 32. To qualify for copyright protection, a work must be original to the author, which means only that the work was independently created by the author, and that it possesses at least some minimal degree of creativity. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). However, the requisite level of creativity is extremely low; even a slight amount will suffice, so the vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Id. 33. It is undisputed that the literary work is a poem. Furthermore, Defendants never asserted the poem constitutes a compilation of data or facts, or that it constitutes a work of non-fiction. Therefore, this court should rule the examined text forms a three line poem and is a work of fiction. 34. Because the work is fiction, and because the amount of creativity to justify copyright is low, this court should conclude Defendants have an uphill battle to show the work is not sufficiently creative to merit copyright registration. For the reasons that follow, this court should conclude Defendants have not made a prima facie case of insufficient creativity to justify denying copyright registration for the poem. 35. Dr. Ashton’s poem sandwiches a pictogram between two lines of English text. The content of the poem expresses humor via a passive aggressive form and it makes an off-color joke. The pictogram serves as the punchline of the joke. Moving from front to bottom to back to the interior of the mug, the line “People Pleaser in Recovery” is followed by the pictogram which is a defiant and insulting expression, from which the reader may conclude recovery from people pleasing is evident by the expression of defiance. The last line, which states “Refill,” is a metaphor pertaining to recovery (i.e., filling up the soul or ego or self), or it may simply reflect that one is ready to cycle through the poem again. The poem is a highly creative expression of Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 15 of 22 (16) the idea that the people pleaser in recovery is no longer a people pleaser, as evident from the expression of passive aggressive defiance through the pictogram. 36. Defendants made no credible attempt to analyze the creative content of the full poem. Defendants contend each individual word is not copyrightable; however, such an analysis fails to consider the creativity of the work as a whole. Defendants’ analysis, at Ashton-AR-212, of the creativity of the poem’s content as a whole is limited to the following statement: You have further contended that these three elements form a literary work consisting of the phrase “People Pleaser in Recovery. [PICTOGRAM.] Refill.”…The Board finds that, even assuming these three elements could qualify as a literary work…taken as a whole they fail to meet the creativity threshold set forth in Feist for a work of authorship of any kind, literary or otherwise. See 499 U.S. at 359. Defendants’ reliance on Feist is misplaced because Feist pertains to whether a compilation of data possesses sufficient creativity to merit copyright protection. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. at 343-345. The present work is a highly creative work of fiction and not a compilation of facts or data. 37. Defendants’ conclusion that the poem fails to meet the “creativity threshold” is wholly arbitrary, capricious, and constitutes an abuse of discretion because Defendants made no intelligent account for the ruling as it provides no analysis of creativity, and provides no reasons for its decision, when it comes to the creative content of the poem as a whole. Therefore, this Court should conclude Defendants’ decision is fundamentally and substantially flawed, and grant Dr. Ashton’s requested relief. 38. Defendants conclude the meaning of the pictogram is “de minimis.” Ashton-AR-212. This conclusion is not supported by the evidence of record. Exhibit C, Ashton-AR-061 to Ashton-AR-143, provides evidence of the substantial meaning of the pictogram. Exhibit C Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 16 of 22 (17) teaches that the raised middle finger serves as an expression of defiance and insult that is recognized throughout the world. Ashton-AR-061, Ashton-AR-065, Ashton-AR-075. The meaning of the pictogram in the poem is plainly not de minimis because it serves as the punchline for the joke that is made. Based on the evidence of record, this Court should conclude the meaning of the pictogram is substantial and well-known. 39. Defendants mentioned that “names, titles, words, short phrases or expressions are not copyrightable.” Ashton-AR-150. However, Defendants have not argued Dr. Ashton’s poem falls into any of these uncopyrightable categories. Furthermore, Dr. Ashton’s poem is not a name, a title, a word, a short phrase, or a short expression. In fact, Defendants found that, at minimum, the work includes a phrase and a word, Ashton-AR-150, which is substantially more than a phrase. When the poem is properly construed in its entirety, it has three lines, which are also substantially more than a phrase. In other words, as pointed out by Defendants, Dr. Ashton’s poem is substantially more than a short phrase or a short expression, whether construed as just a phrase and a word or whether properly construed as a three line poem. 40. Dr. Ashton argued the combination of English text with pictogram text contributes to the creativity of the poem. Ashton-AR-157. Defendants never considered this creative aspect of the poem, which constitutes a reversible abuse of discretion. 41. Dr. Ashton argued Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162, 1166 (S.D. Texas 1982), should be applied to this matter. Ashton-AR-157 to Ashton-AR- 158. In Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162, 1166 (S.D. Texas 1982), the court deemed phrases “I love you E.T.” and “E.T. Phone Home” from a fictional movie protectable by copyright as stand-alone text. Defendants committed a substantial abuse of discretion by failing to address this case law and by failing to address Dr. Ashton’s Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 17 of 22 (18) creativity arguments supported by this case law. This court should hold the ruling in Universal City Studios is persuasive and apply it to this case because the People Pleaser work is a work of fiction as were the copied E.T. phrases of Universal City Studios. 42. Dr. Ashton filed Exhibit A4, which is a copy of famous American poem “The Red Wheelbarrow,” and argued this famous poem consisting of only a single short phrase is evidence that even a single short phrase can be highly creative. Ashton-AR-158; Ashton-AR-204 to Ashton-AR-206. Defendants never considered this evidence of substantial creativity in a short phrase. Failure of Defendants to consider all evidence submitted in favor of copyrightability constitutes yet another abuse of discretion and demonstrates that Defendants conclusion about creativity is not based on reasoned decision making and does not include an intelligent account of the ruling. Dickinson v. Zurko, 527 U.S. 150, 164 (1999)(Supreme Court holding that agency decisions must be supported by “substantial evidence”). 43. For all of the above reasons, this Court should hold Defendants failed to intelligently account for its ruling, did not provide evidence of reasoned decision-making and abused its discretion when concluding, contrary to the evidence of record, Dr. Ashton’s fictional work failed to meet the threshold requirement for creativity needed for copyright registration as text. 2. THE ARRANGEMENT OF ELEMENTS ADDS SIGNIFICANTLY TO THE SUBSTANTIAL CREATIVITY OF DR. ASHTON’S POETIC WORK OF FICTION, WHICH DEFENDANTS HAVE IGNORED, WHICH CONSTITUTES REVERSIBLE ERROR 44. It is a well-settled proposition that how words are arranged must be considered when determining whether text possesses the necessary amount of creativity to merit copyright protection. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991). Dr. Ashton argued the arrangement of text of the People Pleaser work constitutes a highly original three- Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 18 of 22 (19) dimensional arrangement of text and middle finger pictogram to express humor and sarcasm through insult. Ashton-AR-158. Dr. Ashton argued that because of this original arrangement of script text and pictogram text, the pictogram is not in view until a person tilts the mug towards themselves, thereby flashing the middle finger on the bottom of the mug towards an observer who previously saw the phrase “People Pleaser in Recovery.” Ashton-AR-158 and Ashton-AR- 159. Dr. Ashton argued this 3-D arrangement of text is highly original because it places a literary emphasis on the pictogram. Ashton-AR-159. 45. Defendants contend “[t]here is…nothing inherently original about placing text or symbols on a mug, and the simplistic relation of the elements to one another in the Work does not transform this arrangement into something copyrightable.” Ashton-AR-213. Defendants’ contention is conclusory, and fails to provide an intelligent account for the ruling. Furthermore, Defendants’ conclusion is contrary to the evidence of record. Defendants never proffer any explanation as to why the 3-D arrangement of the pictogram text sandwiched between English text in order to emphasize the pictogram is not substantially creative. This Court should rule that this deficiency in Defendants’ ruling constitutes yet another reversible error. 46. Defendants contend “any effect that these elements are intended to create or actually do create in an observer is wholly irrelevant to the intrinsic creativity of the Work itself.” Ashton- AR-213. This Court should reject this contention as absurdly incorrect. First, Defendants’ contention is contrary to their assertion that, according to 17 U.S.C. § 101, a compilation of otherwise individually uncopyrightable elements may be “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Ashton-AR-213 (emphasis added). The two lines of English text and the pictogram have been creatively selected to make a humorous poem, and these lines have been creatively coordinated Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 19 of 22 (20) and arranged in 3-D to place emphasis on the pictogram, which serves as a punchline. Second, Defendants proffer no reason in support of the conclusion that the 3D arrangement of text and pictogram is not highly creative. Third, the Court should conclude that the 3D arrangement of text and pictogram sharply emphasizes the punchline of the poem, namely, the pictogram, in a highly creative manner as argued by Dr. Ashton, Ashton-AR-157 to Ashton-AR-159. Therefore, this Court should hold Defendants’ conclusion that the poem’s 3D arrangement is “wholly irrelevant” constitutes another reversible error because the 3D arrangement is highly creative and constitutes an element of the literary work. 47. As evident from Exhibit A4, Ashton-AR-206, a simple arrangement of text of a single phrase may imbue a poem with a high amount of creativity because it is the arrangement of text that creates dramatic literary effect. In this case, the 3D arrangement of Dr. Ashton’s pictogram sandwiched between two lines of text creates a dramatic literary effect demonstrating an exceptionally high amount of creativity far exceeding any threshold level required for copyright. Therefore, this Court should rule Defendants’ conclusions to the contrary are plainly incorrect, unsupported by the administrative record, and constitute another reversible error. 3. DR. ASHTON’S MIDDLE FINGER PICTOGRAM CONSTITUTES AN ELEMENT OF A “LITERARY WORK” DEFINED BY 17 U.S.C. § 101 SO ANY RULING TO THE CONTRARY CONSTITUTES REVERSIBLE ERROR 48. 17 U.S.C. § 101 defines “Literary Works” as works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. Dr. Ashton argued his middle finger pictogram constitutes a “word” or “symbol or indicia” falling within the scope of an element of a literary work. Ashton-AR-155. In support of this Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 20 of 22 (21) argument, Dr. Ashton proffered evidence including Exhibit D, the article “Writing,” at http://www.mesopotamia.co.uk/writing/home_set.html (last visited July 24, 2012), and Exhibit E, the article “Cuneiform Tablets: About the Collection,” at http://memory.loc.gov/intldl/cuneihtml/about.html (last visited July 24, 2012). Ashton-AR-144 to Ashton-AR-146. Exhibit D teaches “[t]he earliest writing was based on pictograms. Pictograms were used to communicate basic information about crops and taxes.” Ashton-AR- 144. Exhibit E, which is an article from the Library of Congress, teaches “Cuneiform, an ancient writing system, involves the use of a reed to make impressions in clay” and “[o]riginally, cuneiform signs were pictograms, later, it also became syllabic.” Ashton-AR-145. 49. Thus, the facts of record (which include statements by the Library of Congress) establish that pictograms formed the earliest writings, so this Court should conclude a pictogram may form an element of a literary work under 17 U.S.C. §101, whether a “word” or “symbol or indicia.” Furthermore, this Court should rule that Dr. Ashton’s pictogram text plainly corresponds to a globally recognized middle finger gesture that expresses defiance and insult as supported by Exhibit C of the administrative record. Ashton-AR-061, Ashton-AR-065, Ashton- AR-075. 50. For all of the above reasons, this Court should rule Dr. Ashton’s pictogram constitutes a proper element of a literary work in accordance with the definition under 17 U.S.C. § 101. Therefore, this Court should rule the pictogram properly forms one of the three lines of text of Dr. Ashton’s poem. 51. Defendants initially concluded Dr. Ashton’s pictogram was not an element of the poem. Ashton-AR-150. Defendants subsequently retreated from that position, and wrote “[t]o the degree the pictogram is considered an expressive symbol, and thus a literary work…the content Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 21 of 22 (22) of the expression is certainly de minimis.” Ashton-AR-212. Defendants did not maintain their previous argument that the pictogram is only art and not also text so this argument should be deemed withdrawn. For reasons evinced above, Dr. Ashton agrees with Defendants’ conclusion that the pictogram is an expressive symbol and, therefore, a proper textual element of the poem. 52. Dr. Ashton disagrees with Defendants’ conclusion that the meaning of the pictogram is “de minimis” because Defendants’ conclusion is contrary to substantial evidence of record. As evident from Exhibit C, the meaning of this expressive symbol is globally recognized and substantial. Ashton-AR-061, Ashton-AR-065, Ashton-AR-075. Thus, to the extent Defendants ignored the creative contribution of the pictogram to Dr. Ashton’s literary work, this Court should rule Defendants’ failure to assign creative weight to the pictogram, as an element of the poem, is another reversible error. CONCLUSION 53. For the foregoing reasons, and under the foregoing authorities, Plaintiff Dr. Ashton respectfully submits his Motion for Summary Judgment should be granted in its entirety and the requested relief be granted. Respectfully submitted, Dated: May 9, 2017 ______________________________ Wesley Scott Ashton, Plaintiff pro se 72 Treetop Court Bloomingdale, New Jersey 07403 wesashton@aol.com Telephone: 571-338-0414 Case 1:16-cv-02305-APM Document 13-1 Filed 05/09/17 Page 22 of 22 (1) UNITED STATES DISCTRICT AND BANKRUMPTCY COURTS FOR THE DISTRICT OF COLUMBIA __________________________________________ ) WESLEY SCOTT ASHTON ) ) Plaintiff ) ) C.A. No. 1:16-cv-02305 (APM) v. ) ) UNITED STATES COPYRIGHT OFFICE ) ) Defendant ) ) and ) ) KARYN TEMPLE CLAGGETT, ) Acting Register of Copyrights ) ) Defendant ) __________________________________________) ORDER Upon consideration of Plaintiff’s Motion for Summary Judgment under Fed. R. Civ. P. 56(c)(hereinafter “Motion for Summary Judgment”), and Defendants’ United States Copyright Office (“Copyright Office”) and Karyn Temple Claggett (“Claggett”), Acting Register of Copyrights, or collectively “Defendants,” opposition and Cross Motion for Summary Judgment, this court grants Plaintiff’s Motion for Summary Judgement and (i) reverses Defendants’ final decision denying copyright registration for the text of the work “People Pleaser,” and (ii) remands this matter back to Defendants for further proceedings consistent with the findings of fact and rulings of law of this Court. Case 1:16-cv-02305-APM Document 13-2 Filed 05/09/17 Page 1 of 2 (2) IT IS SO ORDERED. Dated: ______________ ______________________________ Amit P. Mehta United States District Judge Case 1:16-cv-02305-APM Document 13-2 Filed 05/09/17 Page 2 of 2 Case 1:16-cv-02305-APM Document 13-3 Filed 05/09/17 Page 1 of 1