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Short phrases

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Overview Edit

Under the longstanding practice of the U.S. Copyright Office, short phrases are denied registration because they are not subject to copyright protection. "Short phrases" such as part numbers do not typically involve sufficient creativity to warrant granting the author the right to preclude copying of that phrase. To the extent protection of a short phrase is necessary to avoid public confusion as to the source of a product, unfair competition and trademark laws may provide the necessary relief.

History of the Rule Edit

The Copyright Office's "practice of denying registration to words and phrases dates back at least to 1899."[1] In 1958, the Copyright Office issued Circular No. 46, titled "Copyright in Commercial Prints and Labels." The circular explained that "[t]o be entitled to copyright protection, a work must contain something capable of being copyrighted ­ that is, an appreciable amount of original text or pictorial material." "Brand names, trade names, slogans, and other short phrases or expression cannot be copyrighted, even if they are distinctively arranged or printed."

Soon thereafter, the Copyright Office first published its short phrases regulation. Section 202.1 of Title 37, C.F.R. provides in pertinent part that:

§ 202.1 Material not subject to copyright.
The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:
(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents. . . .

The regulation was immediately endorsed by the Second Circuit.[2]

Current Copyright Office Practice Edit

The Copyright Office will not register even a creative short phrase. Copyright Office Circular 34 provides further elaboration of the Copyright Office's practice regarding short phrases. In particular, the circular explains that "[e]ven if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright." In other words, even a creative short phrase is not protected by copyright.[3] Just as ideas and facts are not protected by copyright in order that the public may use this information, so too all short phrases, even creative ones, are not protected so that the phrases are available for the public to use.

Instead of copyright law, short phrases, at least when used in association with commercial products, are appropriately handled under trademark law. Circular 34 explains that short phrases may be entitled to protection "under the general rules of law relating to unfair competition, or they may be entitled to protection and registration under the provisions of state or federal trademark laws." The circular notes that the "federal trademark statute covers trademarks and service marks — those words, phrases, symbols, or designs that identify the source of the goods or services of one party and distinguish them from those of others."

Congress's has not disturbed the Copyright Office's long-standing practice against registering short phrases, despite repeated and extensive revisions of the copyright law. When Congress was considering substantially revising the copyright laws before 1976, it recognized that short phrases would continue to be outside of copyright protection.[4] Congress's acquiescence in the longstanding administrative rule against registering short phrases would appear to reflect Congress's approval of the rule.[5]

References Edit

  1. 1 William Patry, Copyright 333 n.89 (1994).
  2. See Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959) (copyright was rejected for standard instructions on "how to serve" a cake). Accord Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (applying Sara Lee, holding "most personal sort of deodorant" an "ordinary phrase" lacking "appreciable amount of original text" and therefore not protected by copyright); CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1519 (1st Cir. 1996) ("It is axiomatic that copyright law denies protection to 'fragmentary words and phrases' and to 'forms of expression dictated solely at functional considerations' on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection.") (holding unprotectable "if you're still 'on the clock' at quitting time" and "clock in and make $50 an hour"); Murray Hill Publications, Inc. v. ABC Comms., Inc., 264 F.3d 622, 633 (6th Cir. 2001) (holding unprotectable "Good morning, Detroit. This is J.P. on JR in the A.M. Have a swell day.").
  3. See also Compendium of Copyright Office Practices II, §305 ("short phrases or expressions are not copyrightable, even if such expressions are novel").
  4. See H.R. Rep. No. 90-83, at 14-15 n.1 (1967) (describing "other areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to" and including in the list of "areas of subject matter now on the fringes of literary property but not intended, solely as such, to come within the scope of the bill[:] ...titles, slogans, and similar short expressions").
  5. See J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 145 (2001) (noting that Congress was long aware of the Patent and Trademark Office's practice of issuing utility patents on plants which "suggests a recognition on the part of Congress" that the practice was authorized by statute).

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