On 10 July 2016 Portugal won the UEFA Euro, the European football championship, by beating France on a famous final in Paris.
The Portuguese have brought home the trophy that was held by Cristiano Ronaldo, and named “Henri Delaunay cup”, in honor to the former president of the French Football Federation and UEFA's first secretary-general.
That was undoubtedly a tasty triumph for the Portuguese represented by a shiny and splendid trophy. However the Henri Delaunay cup is not an original work deserving protection by copyright at least that is what the US Copyright Office just decided.
In 2016 UEFA applied to register the Euro Trophy at the US Copyright Office (USCO). The USCO described the trophy as a "a silver two-handled vase, with a tiered pedestal foot, bulb-shaped body, long neck, and three-tiered lip. The handles are shaped in braids and there is curvilinear engraving on the pedestal, body, and lip”.
The UEFA Euro trophy
After the initial examinations made in 2017, the registration was rejected because the USCO considered that the work “as a whole consists of a standard trophy vase accented with a few bands and twisted handles” and “[t]he very simple combination of elements into an expected configuration given the underlying nature of the work does not exhibit the creativity to support a registration”.
In September 2018 the decision was confirmed by the USCO Board of Review (as reported by the IPKat blog). The Board considered that the overall shape of the work shares common design features with amphora, a standard shape in Greek and Etruscan pottery. The differences introduced, namely the twisted handles, do not reach the minimum of originality required as they are also a familiar feature in Greek pottery (images below).
* ** ** (*) The Metropolitan Museum of Art (**) Musée du Louvre
UEFA cited a number of Office-issued trophy registrations however the USCO rejected the comparison. UEFA also mentioned the opinion in Titlecraft, Inc. v. Nat’l Football League where the court addressed one of the most famous American trophies, the Vince Lombardi trophy awarded by the National Football League to the Super Bowl winner. Given the obvious differences between the objects, the Board had no difficulty in refusing the argument, maintaining that the Euro Cup trophy is not sufficiently creative but rather a standard design based on classical and common works of art.
Under US law, a work may be registered if it qualifies as an “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). The concept of “original” has two aspects, according to the US case law (namely, the Feist case). First of all, the work will have to express an “independent” creation of its author ie it cannot be a copy of other works. In addition, the work must have “enough creativity”, that is, there must satisfy a minimum level of creativity. As the USCO Board noted, some combinations of common or standard design elements may contain sufficient creativity with respect to how they are juxtaposed or arranged to support a copyright. Nevertheless, not every combination or arrangement will be sufficient to meet this test. There will therefore be works not protected because they do not reach this minimum level (in the Feist case, an alphabetical telephone directory was not considered an original work).
The same type of legal issues may be raised under the copyright law of Portugal, and other countries as well. Nevertheless it is quite difficult to anticipate what would be the decision of a Portuguese court if asked to rule on whether or not the Delaunay cup is sufficiently creative to be considered an original work protected by copyright.
Learnings from other intellectual property areas namely, design, trademark and patent law are not helpful here. The novelty and individual character of the trophy design in comparison with the classical vases is not relevant. That the Euro trophy is well-known among football fans or possesses a high distinctive character as symbol of the UEFA Euro tournament might be valuable for trademark law but not for copyright protection. It is neither important that new uses (trophy) for known products (amphora) may generally be protected by a patent. The test of originality can be a subtle one.