You Can’t Copyright That: Pharaoh Did It First

You Can’t Copyright That: Pharaoh Did It First

MeganS_bioBy  Megan St. Ledger | Copyright law protects “original works of authorship,” including pictorial, graphic, and sculptural works” which include two- and three-dimensional works of fine, graphic, and applied art. A pending New York case brought by jewelry designer Baden Baden Inc. (“Baden”) against famed Canadian rapper and actor Drake raises interesting questions regarding the meaning of “original works of authorship” under United States copyright law. In its complaint, Baden asserted that it created an original, diamond-studded owl pendant necklace for Drake, and Drake infringed Baden’s registered copyright for the original owl necklace by reproducing it.  To prove Drake’s alleged copying, Baden attached pictures from Instagram of alleged Drake fans sporting necklaces with similar owl pendants.

The designer is afforded copyright protection at the time the “original work” is created. Registration with the United States Copyright Office is not required to secure copyright protection, and in litigation, the copyright holder still needs to prove that its work is an original work of authorship. To prove copyright infringement, the copyright holder must establish (1) ownership of a valid copyright, and (2) copying of the constituent elements of the work that are original.

Drake moved to dismiss Baden’s complaint, arguing that the owl pendant was not protectable because the owl symbol had entered the public domain. Drake accused Baden of copying the owl design from the ancient Egyptian hieroglyph for the letter “M.” Drake argued that Baden’s design was an obvious copy of the hieroglyph and Baden did not contribute anything original to the owl symbol in order to set it apart from the ancient design.

Although the New York court denied Drake’s motion to dismiss, Baden’s ultimate success is far from assured. Drake raises substantial and novel issues concerning the availability of a copyright to works similar to the ancient Egyptian alphabet. As more and more images of ancient works and symbols can be easily located online, it will be interesting to see if other alleged infringers follow Drake’s lead by arguing that registered works are nothing more than unoriginal copies of ancient artwork in the public domain.

The case is Baden Baden, Inc. v. Graham, No. 13-cv-5986 (S.D.N.Y.). To contact the author of this post, email Megan at We welcome your comments, questions and suggestions.

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