Munro v. U.S. Copyright Office — D.C. Circuit Upholds Copyright Denial for Fiber Optic Sculpture

Background

Bruce Munro, an artist, created a sculpture that can be described as a glass orb resting atop a spike-ended transparent acrylic stem, with fiber optic light running through the stem into the orb and winding against the orb’s interior curved wall. Munro submitted an application to the Copyright Office for registration of the sculpture’s design. The Copyright Office denied the application — and twice denied reconsideration — concluding that the work’s “combination and arrangement” of “common and familiar shapes” lacked “the requisite amount of creativity” for copyright protection.

Munro challenged the denial in the U.S. District Court for the District of Columbia under the Administrative Procedure Act (APA). The district court granted summary judgment to the Copyright Office (March 2024), finding no abuse of discretion. Munro appealed to the D.C. Circuit, raising both preserved and new arguments, including constitutional challenges and reliance on two subsequent Supreme Court decisions: SEC v. Jarkesy, 144 S. Ct. 2117 (2024), and Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).

The Court’s Holding

The D.C. Circuit affirmed in an unpublished per curiam judgment. The court addressed four issues.

Forfeited arguments. Munro raised several arguments for the first time on appeal — including a challenge to the validity of the creativity regulation at 37 C.F.R. § 202.10(a) and a constitutional challenge to the Copyright Office’s administrative appeal procedures. The court refused to consider them, noting that forfeiture rules exist precisely to give district courts the opportunity to address issues in the first instance. As to Munro’s attempt to save his new arguments under Jarkesy, the court pointed out that by the time Munro’s district court briefing on summary judgment began, the Fifth Circuit had already ruled in Jarkesy’s favor — giving Munro adequate notice to raise similar arguments at the trial court level if he chose to.

The creativity threshold. On the preserved merits, the court agreed with the Copyright Office and the district court. The Copyright Office correctly applied the standard from Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003): a combination of individually unprotectable elements may still warrant protection if the elements are “numerous enough and their selection and arrangement original enough” to constitute an original work. Munro’s sculpture — a filament and glass orb, both common shapes — did not clear this bar.

Loper Bright. Munro argued that the Supreme Court’s decision in Loper Bright required a remand so the district court could reconsider under the new standard. The D.C. Circuit rejected this. Loper Bright changed how courts interpret ambiguous statutes; Munro’s case is about applying undisputed legal principles to specific facts, not about resolving statutory ambiguity.

The Perlmutter removal. In a footnote in his reply brief, Munro argued that the Copyright Office’s appellate brief was improperly filed after Register of Copyrights Shira Perlmutter was removed from office but before any new Acting Register had authorized it. The court declined to address this claim because the Appellees’ brief was signed by attorneys from the Department of Justice — not from the Copyright Office itself — and thus the issue of Copyright Office authorization was irrelevant.

Key Takeaways

• A sculpture composed of common, familiar shapes is not automatically copyrightable. The combination and arrangement must itself reflect sufficient creativity beyond the routine or obvious assembly of known elements.
• Post-briefing Supreme Court decisions (Jarkesy, Loper Bright) generally do not excuse a litigant from raising related arguments that were reasonably available earlier in the litigation.
• Loper Bright‘s elimination of Chevron deference applies to interpretation of genuinely ambiguous statutes — it does not alter review of factual or discretionary determinations by agencies applying undisputed legal standards.
• The ongoing political debate over the Copyright Office’s leadership (the Perlmutter removal) has not, at least in this case, disrupted the Office’s ability to defend its decisions in court.

Why It Matters

The creativity threshold for copyright registration is a recurring flashpoint between artists and the Copyright Office, particularly for works built from familiar forms. Munro reinforces that assembling recognizable geometric shapes — even with artistic intent — does not automatically produce a copyrightable combination. The case also serves as a reminder that litigants who want to press novel administrative-law arguments (inspired by Jarkesy or Loper Bright) must do so at the earliest available opportunity. The court’s swift rejection of the Perlmutter-removal argument suggests that DOJ-represented agencies face minimal procedural disruption from personnel changes at the agency itself.