Cyberpunk 2077 – A Good Lesson in Copyright vs. Trademark

Cyberpunk 2077 is the 2020\2021 equivalent of Duke Nukem Forever: Protracted development timeline, multiple delays, and upon eventual release – mixed reviews. Although Cyberpunk certainly faired much better than Nukem did from a gameplay and critical reception standpoint – the legal fallout experienced by CD Projekt (developer of Cyberpunk) has been decidedly much worse. Not only do they have to contend with a class-action lawsuit surrounding the release of the game – the Copyright Office denied their application for copyright protection on the Cyberpunk 2077 logo. In today’s post, we’ll be discussing the Cyberpunk 2077 copyright rejection and some important distinctions in the world of copyright vs. trademark.

Cyberpunk 2077 Logo – Rejected for Copyright Protection

Out of the gate, it’s important to note that CD Projekt does own a trademark on the logo above. Without discussing directly with the attorneys involved it’s hard to know what the strategy was and why a copyright was filed alongside a trademark – but suffice to say, it was probably a “more the merrier” strategy.

The Basics of Copyright – Creativity

In order to be copyrightable, a work has to have a certain level of creative content included. The bar for “is it creative enough?” is admittedly pretty low, but you cannot copyright, for example, a combination of short words and phrases or an arrangement of easily recognizable geometric shapes. Now, of course, there is a spectrum – but a short phrase and a few shapes is not enough. (*cough* look at the logo…a short phrase…and maybe there’s a shape in there?)

The thing to remember is that copyright is about the (art)work itself. Is the art creative \ nuanced enough? Does it include a sufficient level of creativity – rather than just an arrangement of items that are not really that creative? (i.e. short phrases and well-known shapes).

In this case, the Copyright Office decided – “no” – the Cyberpunk 2077 logo was a short phrase and some shapes – so, not copyrightable.

The Basics of Trademark – Uniqueness and Commerce

In order to be trademarkable, a phrase or logo has to be 1) unique – in relation to the products\services sold under it and; 2) actually used to promote the claimed products\services. There is not an intensive “is it creative enough” analysis. The phrase\logo has to be unique, in so far as there are no other pre-existing similar trademarks promoting similar products\services and the phrase\logo has to actually be used to promote the goods\services claimed in the application.

(To be fair, there are some generic words that cannot be trademarked under any circumstances, but that’s for a separate post and was not an issue in this specific case.)

Summary

The point here is that the Cyberpunk logo could be trademarked (and is) but could not be copyrighted. The trademark was unique (there are no other downloadable PC games called Cyberpunk 2077) and is used to market a PC game. However, the logo was not (artistically) creative enough to be copyrighted because (unlike a painting or a novel) it is just a short phrase (“Cyberpunk 2077”) and an arrangement of some shapes (which, let’s be honest, is pretty generous because….apart from the stylized nature of the words…I don’t see a ton of shapes in there).

Why the featured image of Keanu? Well, you can play the game to find out….but he’s still the star of one of the best cyberpunk movies of all time – Johnny Mnemonic. (Which, to get super nerdy for a minute, is actually a short story by William Gibson – the godfather of the cyberpunk genre and the author who originally coined the phrase “cyberspace.”)

Thanks for reading.

*Featured Image Credit: Wikipedia

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