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Copyrightability in “Original Works of Authorship”

To be protected by copyright, to have copyrightability, requires a certain degree of creativity. The Copyright Clause of the U.S. Constitution provides for copyright protection to “original works of authorship.” The Supreme Court has stated that for a work to be protected it has to “possess[] at least some minimal degree of creativity.” Feist Publ’ns, Inc. V. Rural Tel. Serv., 499 U.S. 340, 345 (1991). There must be some intellectual labor involved. The Code of Federal Regulations, 37 C.F.R. §202.1(a) lists some of the material not subject to copyright protection. It includes “short phrases such as names, titles, and slogans.” Moreover, that a work (as a whole) has been registered is not conclusive that all linguistic and structural bits and pieces are equally protected. So, for example, if the alleged infringement is an unprotectible element there is no infringement even though it may be identical or substantially similar to the original. In determining infringement, the focus is on “the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas, or concepts themselves.”

Copyrightability refers to the originality of content. So, for example “scènes à faire, individual words and short phrases are generally not protected because they lack the requisite originality.” Prunte v. Universal Music Group, Inc., 699 F.Supp.2d 15 (D. Columbia, 2010). Plaintiff in Prunte complained that defendant copied words and phrases from his copyrighted songs. To his “Fire in the Hole” (title of the song) the defendant had “Fire in Da Hole”; to his “God, Pick Up the Phone” the defendant had “Lord, Give Me a Sign”; to his “I’m So High” the defendant had “So High.” The claim for “Fire in the Hole” was rejected for being a title. “Lyrics using cliched language – such as the equation of being high to touching the sky – ‘are too trite to warrant copyright protection’,” citing Johnson v. Gordon, 409 F.3d 12, 24 (1st Cir. 2005). The court concluded that “[a]s a whole, the similar elements listed by [plaintiff] amount to nothing more than a ‘random’ assortment of ‘similarities scattered throughout the works,’ which ‘[do] not support a finding of substantial similarity where [the] works as a whole are not substantially similar.”

If an “ordinary phrase” lacks the “minimal degree of creativity” it cannot be protected under any other statutory or common law theory. In Starobin V. King, 137 F. Supp.2d 93 (N.D.N.Y. 2001), for example, the author created a voluminous list of “correspondences” demonstrative according to the author of “literary rape.” The alleged “telling similarities” included “hearing footsteps on gravel (Blood Eternal), and hearing footsteps on black tar (Desperation)”; “driver talks on walkie-talkie (Blood Eternal), and author talks on cellular phone (Desperation)”; “tooth pulp like undigested meat (Blood Eternal), and raw tissue from mouth and nose like raw meat (Desperation)”; and “gull with blood drained out (Blood Eternal), and dog devoured by buzzards (Desperation).”

Even if the alleged infringer acknowledged familiarity with the plaintiff’s work, employing similar phrases do not add up to copyright infringement. The most recent case on titles and “ordinary phrases” is Syrus v. Bennett, et ano., 455 Fed.Appx. 806 (10th Cir. 2011) (unpublished). Plaintiff (appearing pro se) argued that the alleged infringed phrases, “Go Thunder” and “Let’s Go Thunder” are protected under the theory that “even a small portion of a copyrighted work may be entitled to copyright protection.” While that may be so, “[t]he mere fact that a work is copyrighted does not mean that every element of the work may be protected.” An ordinary phrase taken from a copyrighted work “may be quoted without fear of infringement,” but not one distinctive of the author’s voice. Salinger v. Random House, Inc., 811 F.2d 90, 98 (2nd Cir. 1987).

In Syrus, plaintiff argued that if individual words such as “Budweiser” and “Coors” are entitled to possession then so are his words. But (as the court pointed out) this confuses copyright and trademark protection. “Unlike copyright law, trademark rights ‘grow[] out of … use [in commerce].” That is, trademark protected words and phrases presuppose their use as the source of goods or services. That is not the case with creative works. The “brand” (if such there be one) is the author not the work.

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