Munro v. United States Copyright Office

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRUCE MUNRO,
Plaintiff,
v.
Civil Action No. 22-2909 (TJK)
UNITED STATES COPYRIGHT OFFICE et
al.,
Defendants.
MEMORANDUM OPINION
This copyright case concerns a three-dimensional sculpture completed by Bruce Munro in
2012. Munro applied to the U.S. Copyright Office for copyright registration of his sculpture, but
the Copyright Office denied his application. After two unsuccessful requests for reconsideration,
Munro sued the Copyright Office and the Register of Copyrights over the denial. Both parties
moved for summary judgment. For the reasons explained below, the Court finds that the Copyright
Office did not abuse its discretion in deciding that Munro’s sculpture lacks the necessary level of
creativity to warrant copyright protection. Thus, it will deny Munro’s motion and grant Defend-
ants’.
I. Statutory and Procedural Background
The Copyright Act of 1976 protects certain categories of “original works of authorship
fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). One of those categories is
“pictorial, graphic, and sculptural works,” which includes “two-dimensional and three-dimen-
sional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps,
globes, charts, diagrams, models, and technical drawings.” Id. §§ 102(a)(5), 101. That a copy-
rightable work must be “original” is not only mandated by the statute but also a constitutional
requirement. Feist Publ’ns v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991). The Supreme Court
has explained that a work is considered “original” if it “was independently created by the author
(as opposed to copied from other works), and [if] it possesses at least some minimal degree of
creativity.” Id. at 345.
Under the Copyright Act, a copyright owner may institute a civil action for infringement
of his copyright. 17 U.S.C. § 501(b). The Act also allows an owner to register qualifying works
with the Register of Copyrights. Id. § 408. Registration is not a condition of copyright protection,
but a copyright owner may not pursue an infringement action in court without first applying for
registration. See Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887
(2019) (“[A]lthough an owner’s rights exist apart from registration, registration is akin to an ad-
ministrative exhaustion requirement that the owner must satisfy before suing to enforce ownership
rights.”) (internal citation omitted). Moreover, registration confers certain advantages. For exam-
ple, a valid registration can create “a rebuttable presumption” as to the validity of a copyright
during an infringement action. Am. Soc’y for Testing & Materials v. Public.Resource.Org, Inc.,
597 F. Supp. 3d 213, 230 (D.D.C. 2022), aff’d, 82 F.4th 1262 (D.C. Cir. 2023).1
In August 2019, Munro submitted a registration application to the Copyright Office for his
work “Untitled sphere, stem, spike, filament 3D sculptural design.” ECF No. 35 at 5. The work
is a three-dimensional sculpture completed in 2012. Id. As described in the Administrative Rec-
ord, its structure consists of a clear glass orb sitting above a spike-ended transparent acrylic tubular
stem, with a fiber optic light running through the stem and into the glass orb where it is wound
1
This rebuttable presumption only applies if the work was registered before or within five
years after its first publication. If the work was registered more than five years after its first pub-
lication, the evidentiary weight of the registration rests “within the discretion of the court.” Am.
Soc'y for Testing & Materials, 597 F. Supp. 3d at 230 (citing 17 U.S.C. § 410(c)).
2
against the orb’s interior curved wall. Id. at 31, 54. The application was accompanied by four
two-dimensional photographs depicting the sculpture—two of which are reproduced below:
Id. at 6–7.
Munro’s initial application was refused by a Copyright Office Registration Specialist who
characterized the sculpture as a “useful article” that “does not contain any non-useful design ele-
ment that could be copyrighted and registered.” Id. at 16. Three months later, Munro requested
reconsideration of that refusal, in which he argued that the sculpture contains an “artistic expres-
sion . . . that is separable from the Work’s utilitarian function of illumination.” Id. at 20. In April
2020, the Copyright Office reaffirmed its initial decision but expanded on its reasoning. Although
now agreeing with Munro that the sculpture did possess design elements that are conceptually
separable from the purely utilitarian function of the sculpture, it still found that its separable design
3
was not sufficiently original to warrant copyright protection. Id. at 24. The Copyright Office
explained that because “the separable features of this design are common and familiar shapes, and
because the combination and arrangement of these features do not contain the requisite amount of
creativity,” it would again refuse registration. Id. at 26.
Munro requested reconsideration a second time. He argued mainly that the sculpture, taken
as a whole and through its separable features, demonstrated a sufficient level of creativity for cop-
yrightability. Id. at 33–35. Second requests for reconsideration are heard by the Copyright Office
Review Board, and in May 2021, the Board issued a final decision affirming the registration denial.
Id. at 54–60. It confirmed the Copyright Office’s determination that the sculpture was more than
a useful article, but after walking through Munro’s arguments, it concluded that the sculpture was
insufficiently creative to be copyrightable. Id. at 58–60.
One month later, Munro sued in another district, seeking an order reversing the denial of
his application and compelling the Copyright Office to register his sculpture. The case was trans-
ferred to this Court in September 2022, and both parties now move for summary judgment. ECF
Nos. 29, 30.
II. Legal Standards
Although both parties seek summary judgment, the ordinary summary-judgment standard
under Federal Rule of Civil Procedure 56 does not apply. Munro “seeks review of agency action
under the APA,” so the Court “sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson,
269 F.3d 1077, 1083 (D.C. Cir. 2001). That is, the Court has no factfinding role because the case
presents “a question of law.” Id. It must ask “whether the agency action is supported by the
administrative record and otherwise consistent with the APA standard of review.” Citizens for
Resp. & Ethics in Wash. v. SEC, 916 F. Supp. 2d 141, 145 (D.D.C. 2013). On top of its purely
procedural requirements, the APA directs courts to “hold unlawful and set aside agency
4
action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accord-
ance with law.” 5 U.S.C. § 706(2)(A).
When evaluating a claim that agency action is arbitrary or capricious, courts must ensure
that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for
its action.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (quotation omitted).
This standard does not empower a court to “substitute its judgment for that of the agency.” Id.(quotation omitted). In other words, the agency’s “policy choices” are not up for debate—only
the “explanation it has given.” Id. at 530. That explanation must include a “rational connection
between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quotation omitted). The agency must also con-
sider all “important aspect[s] of the problem.” Id. “[T]he party challenging an agency’s action as
arbitrary and capricious bears the burden of proof.” San Luis Obispo Mothers for Peace v. U.S.
Nuclear Regul. Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).
The D.C. Circuit has further instructed, specifically with respect to a refusal to register by
the Copyright Office, that review is conducted “under a deferential, ‘abuse of discretion’ stand-
ard.” OddzOn Prods., Inc. v. Oman, 924 F.2d 346, 348 (D.C. Cir. 1991).2 This is because, regard-
less of any formal registration from the Copyright Office, a copyright applicant “can gain full
judicial review of copyrightability in an infringement action.” Atari Games Corp. v. Oman, 888
F.2d 878, 887 (D.C. Cir. 1989) (Silberman, J., concurring) (“Atari I”); see also Paul Morelli
2
Munro argues that the Copyright Office ratcheted up the copyright threshold and deviated
from the applicable legal standard. ECF No. 29-1 at 5, 24. This claim does not change this Court’s
relevant standard of review. As the Fourth Circuit explained when faced with this same issue, a
plaintiff challenging a Copyright Office decision that a work lacks sufficient creativity is arguing
that it “reached the wrong result, not that [it] applied the wrong legal standard or misapprehended
or ignored the controlling legal principles.” Darden v. Peters, 488 F.3d 277, 284 (4th Cir. 2007).
Thus, the appropriate standard of review remains for an abuse of discretion. Id. at 286.
5
Design, Inc. v. Tiffany & Co., 200 F. Supp. 2d 482, 485 n.3 (E.D. Pa. 2002) (explaining the differ-
ence between appealing a refusal to register decision and an infringement action).
III. Analysis
As described above, the Copyright Act protects certain categories of “original works of
authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). And a work is
considered “original” if it “was independently created by the author (as opposed to copied from
other works), and [if] it possesses at least some minimal degree of creativity.” Feist, 499 U.S. at
345. The parties dispute only whether the Review Board abused its discretion in deciding that
Munro’s sculpture did not “possess[] at least some minimal degree of creativity.”3 For the below
reasons, the Court finds that it did not.
When determining what constitutes sufficient creativity for copyright purposes, “the req-
uisite level of creativity is extremely low.” Feist, 499 U.S. at 345. The Supreme Court has sug-
gested that “[t]he 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. (internal quotation omitted). That
said, “[n]ot every selection, coordination, or arrangement will pass muster,” and “[t]here remains
a narrow category of works in which the creative spark is utterly lacking or so trivial as to be
virtually nonexistent.” Id. at 358–59. A work lacks the requisite creativity if it can be character-
ized “as mechanical, garden-variety, typical or obvious, or as projecting age-old practices, firmly
rooted in tradition and so commonplace that the combination of elements has come to be expected
3
The Copyright Office originally denied Munro’s application because it concluded that his
sculpture was a “useful article” and did not contain any non-useful design element that could con-
stitute “a pictorial, graphic, or sculptural work.” ECF No. 35 at 16. But that reasoning no longer
matters because, as described above, the Copyright Office later changed it in response to Munro’s
first request for reconsideration. Id. at 24. And the Review Board reaffirmed that revised reason-
ing in its final decision. Id. at 58.
6
as a matter of course, or as practically inevitable.” Atari Games Corp. v. Oman, 979 F.2d 242,
246 (D.C. Cir. 1992) (“Atari II”) (cleaned up) (citing Feist, 499 U.S. at 362–63) .
Munro does not argue that the component elements of his sculpture individually constitute
creative expression—indeed, he seems to concede that they are “merely . . . geometric shapes.”
ECF No. 35 at 34. Instead, he argues that it is the combination and arrangement of these otherwise
common and familiar elements that result in a sculpture, which as a whole, is sufficiently creative.
Id. at 33. The Review Board recognized “that a combination of unprotectable elements can warrant
copyright protection” but concluded that the sculpture “does not contain the requisite authorship
necessary to sustain a claim to copyright.” Id. at 58. Munro argues that this conclusion was an
abuse of discretion for several reasons, none of which are persuasive.
A. The Review Board Did Not Abuse its Discretion by Failing to Consider the
Sculpture as A Whole
First, Munro suggests that the Review Board did not consider the sculpture as a whole and
instead engaged in a “component-based assessment” that the D.C. Circuit rejected in Atari I. In
that case, the D.C. Circuit criticized the Copyright Office’s rejection of an audiovisual display
because the decision only addressed the work's several parts rather than “the total sequence of
images displayed.” Atari I, 888 F.2d at 883. The Circuit explained that the “focus, even if initially
concentrated on discrete parts, ultimately should be on the audiovisual work as a whole.” Id. (em-
phasis in original). Contrary to Munro’s suggestion, that is precisely what the Review Board did
here. It looked at the individual components but also addressed the sculpture as a whole. For
example, the Board considered whether the sculpture’s overall design and effect recalls flower-
like blooms. ECF No. 35 at 59–60. And in its ultimate conclusion, the Board could not have been
clearer “that, viewed as a whole, the selection, coordination, and arrangement of the transparent
globe, tube, and lighted curved filament is not sufficient to render the Work original.” Id. at 58
7
(emphasis added). Munro may disagree with that conclusion, but that does not change the fact that
the Board’s analysis went beyond considering the sculpture’s component parts.
Munro spills much ink criticizing the Review Board for characterizing the sculpture as
comprising three elements (the orb, stem, and filament) and leaving out the sculpture’s spike and
collar. See ECF No. 29-1 at 11–12, 26–27; ECF No. 32 at 7–10. He then suggests that the failure
to address these two other elements somehow proves that the Board failed to consider the sculpture
as a whole. As an initial matter, the Court is skeptical that Munro’s characterization of the sculp-
ture as comprising five elements—rather than three—is reflected in the administrative record or
that this argument is properly before it. The sculpture is described multiple times in the adminis-
trative record, including by Munro himself, and none of those descriptions refers to the collar. See,
e.g., ECF No. 35 at 19, 31. Indeed, the word “collar” appears nowhere in the Administrative
Record. And while the spike is identified, it is unclear whether it is merely part of the stem as
opposed to a separate element. See id. at 31 (“The Work is a decorative mixed-media sculpture
exhibiting a spike-ended transparent uncolored slender acrylic tubular stem interlaced with optic
fiber and crowned with a spherical uncolored clear glass orb . . . .”) (emphasis added). The Board
can hardly be faulted for describing a work just as the author did. Moreover, at no point in the
administrative process did Munro bring up the spike or collar. See Buckingham v. Mabus, 772 F.
Supp. 2d 295, 300 (D.D.C. 2011) (“[I]t is a ‘hard and fast rule of administrative law’ that ‘issues
not raised before an agency are waived and will not be considered by a court on review.’”) (citing
Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004)). Munro never argued to
the Copyright Office that it should consider the creative value of the spike or collar. To the con-
trary, in his first letter for reconsideration, he refers only to the stem, sphere, and filament as having
creative value. ECF No. 35 at 20 (“[T]he Work’s glass-and-plastic stemmed sphere sculpture and
8
imbedded filament meet the test set forth in Star Athletica and therefore constitute artistic expres-
sion.”). And after the Copyright Office’s first declination to reconsider, which discussed only the
sphere, stem, and filament, Munro again failed to raise the spike or collar as an issue in his second
request for reconsideration. See id. at 33–35. As a result, this specific argument is likely waived
for purposes of this Court’s review.
Yet even were the Court to consider this argument, it is unavailing. An agency need only
consider issues that are “material to the creativity inquiry”; it need not address “all non-dispositive
or tangential aspects of the issue before it.” Ashton v. U.S. Copyright Off., 310 F. Supp. 3d 149,
158 (D.D.C. 2018). Here, the Review Board’s failure to consider a specific individual element of
the sculpture might be a basis for reversal if consideration of that specific elements was required.
But as Munro concedes, none of the individual elements constituted creative expression. The only
obligation on the Board, therefore, was to consider the overall design of the sculpture, which, as
described above, the Board did. Thus, even assuming the Board’s failure to specifically address
the spike and collar was properly before the Court, it would not establish an abuse of discretion.
B. The Review Board Did Not Abuse its Discretion by Failing to Consider the
Sculpture’s Design Features
Next, Munro argues that the Review Board abused its discretion by failing to recognize the
creativity in the sculpture’s intentional design features. Specifically, he claims that the selection
of the specific shapes used, and their relative sizes, ratios, proportions, and clarity all contributed
to a creative visual appearance. ECF No. 29-1 at 7–8, 22–24. He also contends that the intentional
arranging of the optic fiber was a creative choice. Id. But contrary to Munro’s suggestion, the
Board did consider—and then rejected—all these design features.
As to the selection of the shapes and their attributes, the Review Board relied on Satava v.
Lowry, where the Ninth Circuit held “that a combination of unprotectable elements is eligible for
9
copyright protection only if those elements are numerous enough and their selection and arrange-
ment original enough that their combination constitutes an original work of authorship.” ECF No.
35 at 57 (quoting Satava, 323 F.3d 805, 811 (9th Cir. 2003)). Applying that standard, the Board
explained that because the sculpture consisted of only three elements4 and because those elements
are all standard features of lighted glass orbs, the sculpture does not constitute a protectable com-
bination of elements. Id. at 58. The Board contrasted the sculpture with Munro’s site-specific
light installations that were separately afforded copyright protection. See id. at 59 (citing Munro
v. Fairchild Tropical Botanic Garden, Inc., Case No. 20-cv-20079, Order at 1–2 (S. D. Fla. July
13, 2020)). Unlike the single sculpture here, the site-specific instillations included “many, some-
times in the thousands, lighted sculptures in various shapes, colors, and sizes.” Id. Given the
Board’s reliance on Satava, and the fact that Munro cites no contrary authority, the Court cannot
conclude that the Board abused its discretion in finding that the sculpture’s limited and typical
elements rendered it insufficiently creative. See Ashton, 310 F. Supp. 3d at 160 (holding that the
Copyright Office did not abuse its discretion in finding that a work consisting of three elements
lacked sufficient creativity because “some works are too short to receive the protections of copy-
right”).
Munro also argues that the Review Board failed to properly consider the transparency of
the sculpture when it relied on the Compendium of U.S. Copyright Office Practices’ guidance that
the material composition of a work generally does not have a bearing on originality. ECF No. 29-
1 at 24. He contends that his use of transparent elements did have a bearing on the sculpture’s
4
As discussed above, Munro disputes that the sculpture contained only three elements, and
asserts that the Review Board wrongfully characterized it that way. For the reasons already ex-
plained, the Court is skeptical that this claim is properly before it. But in any event, whether the
sculpture is properly described as containing three or five elements does not change the Court’s
view on whether the Board abused its discretion on this point.
10
originality and that the Board inappropriately treated the compendium as “sacrosanct.” ECF No.
32 at 11. It is true that the Compendium “is a non-binding administrative manual” that should be
followed “only to the extent it has the ‘power to persuade.’” Georgia v. Public.Resource.Org,
Inc., 140 S. Ct. 1498, 1510 (2020). But a review of the Board’s entire analysis does not suggest
that it blindly relied on the Compendium. Rather, there is a reasonably discernible path by which
the Board concluded that the specific elements at issue did not meet the threshold for originality.
See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (“[W]e
will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.”).
The Board found that the composition of the sculpture—including, presumably, its clarity—is a
“standard expression of lighted glass orbs.” ECF No. 35 at 58. And it makes sense that the Board
would not credit the use of transparent materials in a light sculpture as creative. See Satava, 323
F.3d at 810 (“[E]xpressions that are standard, stock, or common to a particular subject matter or
medium are not protectable under copyright law.”). Once again, the Court finds no abuse of dis-
cretion.
Finally, Munro contends that the Review Board failed to recognize the intentional posi-
tioning of the optic fiber within the stem and orb. ECF No. 29-1 at 23. Not so. The Board devoted
an entire paragraph to this design feature. ECF No. 35 at 58–59. It explained that Munro cannot
copyright the simple idea of inserting a filament in an orb or glass because that is a common design
choice. Id. And to the extent Munro seeks to copyright the specific arrangement of how the fiber
is curled, the Board characterized this as a “de minimis expression” because the fiber “must con-
form and bend to the overall shape of the orb.”5 Id. at 59. As such, the interlacing of the fiber
Munro also insists that the arrangement of the fiber was “intentional” and “by choice.”
5
ECF No. 29-1 at 7, 23. But as he acknowledges, the creative “inquiry is limited to how the article
11
optic inside the globe is “practically inevitable.” Feist, 499 U.S. at 363. Moreover, the Board
could not even determine whether the curled fiber was fixed in its position, a requirement for
copyright protection. See Kelley v. Chicago Park Dist., 635 F.3d 290, 303 (7th Cir. 2011) (“Fix-
ation in tangible form is not merely a statutory condition to copyright. It is also a constitutional
necessity.”) (citation omitted); see also 17 U.S.C. § 101 (defining a work as “fixed” when it is
“sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communi-
cated for a period of more than transitory duration”). Thus, far from abusing its discretion, the
Board in fact provided both factual and legal bases for discounting the arrangement of the optic
fiber as reflecting sufficient creativity.
C. The Review Board Did Not Abuse its Discretion by Impermissibly Comparing
the Sculpture to Other Objects
Munro takes issue with the Review Board’s references, in two footnotes, to several objects
that are allegedly similar to his sculpture.6 ECF No. 29-1 at 16–22. According to Munro, the
Board committed two errors by discussing these objects. First, it impermissibly compared his
sculpture to non-contemporaneous and non-analogous works. Second, it ventured outside the ad-
ministrative record because these objects were not discussed in the Copyright Office’s previous
decisions. Neither argument holds sway.
As to the first alleged error, Munro mischaracterizes the purpose for which these objects
were included and inaccurately claims that the Review Board “refused registration largely based
on its comparison” of his sculpture with these objects. ECF No. 29-1 at 16. It is true that novelty
and feature[s] are perceived, not how or why they were designed.” Id. at 23 (quoting Silvertop
Assocs. v. Kangaroo Mfg., 931 F.3d 215, 221 (3d Cir. 2019)). Thus, whether Munro intentionally
arranged the fiber optic does not directly bear on whether that arrangement is creative.
6
The specific objects are: “hanging globe string lights,” “string lights,” “cracked glass ball
lights,” and “fairy lights.” ECF No 29-1 at 16–17.
12
is not a requirement of originality, see Feist, 499 U.S. at 345 (“[A] work may be original even
though it closely resembles other works so long as the similarity is fortuitous, not the result of
copying.”), and the Copyright Office will not investigate whether a work was copied from another
unless the two works are “unusually similar,” Compendium of U.S. Copyright Office Practices,
¶313.4(A) (3d ed. 2021). But here, the Board performed no such comparison, nor did it refuse
registration because the sculpture was “unusually similar” to the referenced objects. Rather, the
Board’s reasoning reflected the previous Copyright Office decision—namely, that the sculpture’s
unoriginal combination of elements lacked sufficient creativity. And these objects merely served
as examples to illustrate that point.7 In other words, the Board did not include them to show that
the sculpture lacked novelty or original authorship, but to reinforce its conclusion that the elements
selected and the interlacing of the filament are common design choices that lack creativity. More-
over, because these objects were solely used as examples, not comparators, the fact that they post-
date and are not perfectly analogous to the sculpture does not matter. Munro may disagree with
the Board’s conclusion that his sculpture reflects common design choices, but the Board did not
abuse its discretion by supporting that conclusion with examples in a pair of footnotes.
Munro’s second argument—that the Review Board impermissibly pulled these examples
from outside the administrative record—similarly falls short. Whether the Board was in fact pro-
hibited from considering these objects is far from clear; more importantly, it is irrelevant. The
Compendium provides that “[t]he Review Board will base its decision on the applicant’s written
submission and the administrative record” but that it “may take administrative notice of matters of
general knowledge or matters known to the Office or the Review Board.” Compendium of U.S.
7
Indeed, both footnotes begin with a “[s]ee, e.g.,” signal—demonstrating that the objects
were being cited as examples only.
13
Copyright Office Practices, ¶1704.2 (3d ed. 2021). Given the expansive scope of administrative
notice, the Board was likely permitted to notice these other objects. Cf. Union Elec. Co. v. FERC,
890 F.2d 1193, 1202 (D.C. Cir. 1989) (“It is true that judicial notice is generally limited to matters
of common knowledge, but official notice is broader, allowing an agency in addition to notice
technical or scientific facts that are within the agency's area of expertise.”) (cleaned up). But even
assuming the Board was wrong to take notice of these objects, or that its notice was somehow
deficient,8 none of that would render its decision unlawful because, as already explained, these
objects were merely examples. The Board’s reasoning was based on its observation that the sculp-
ture was a standard expression of lighted glass orbs—an observation that is a “matter[] of general
knowledge or matter[] known to the Office or the Review Board” and would stand on its own,
even with no such examples. Thus, the Board’s decision was not an abuse of discretion because
of their inclusion.
* * *
The Court concludes by noting that it holds only that the Copyright Office’s decision to
refuse registration was not an abuse of discretion; it makes no determination about whether the
sculpture would warrant copyright protection in an infringement action. In that context, the Court
would not be obliged to defer to the Copyright Office but would review the question of
8
For example, Munro argues that the Review Board violated the Due Process Clause and
Administrative Procedure Act by failing to give him an opportunity to rebut the examples as no-
ticed by the Board. ECF No. 29-1 at 18–19. Even assuming this “opportunity to rebut” require-
ment applies to copyright registration, the Board was not required to provide such an opportunity
here because referencing the objects was not a “material fact.” See Union Elec. Co, 890 F.2d at
1202 (“When an agency decision rests on official notice of a material fact not appearing in the
evidence in the record, a party is entitled, on timely request, to an opportunity to show the con-
trary.”) (citing 5 U.S.C. § 556(e)) (emphasis added). As the Court explains, the Board did not
abuse its discretion regardless of the inclusion of these examples. Thus, their inclusion was not a
“material fact” on which “an agency decision rests.” Union Elec. Co, 890 F.2d at 1202.
14
copyrightability de novo. Atari I, 888 F.2d at 887 (Silberman, J., concurring); see also OddzOn
Prod., Inc., 924 F.2d at 350 (emphasizing this distinction).
IV. Conclusion
For all the above reasons, the Court will deny Munro’s Motion for Summary Judgment and
grant Defendants’ Cross-Motion for Summary Judgment. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 18, 2024
15