Copyright Talk

Yesterday I alluded to the black fading to gray area of the copyrightability of short phrases like titles and slogans. In general, such things are not protected by copyright, but if the correct alignment of stars occurs, on certain days of years with the proper moon phases, they are protected.

Okay, it’s not really that mysterious, but sometimes short phrases are protected by copyright, and it depends on the particular circumstances of the phrase and the use in question. There is not black and white rule that will tell you in advance whether a particular use is okay.

What it comes down to is a few key factors, most of which are subjective judgment calls. If the phrase is truly unique or inordinately clever, such that it is unlikely someone else would come up with it independently, or if the phrase is closely associated with particular famous characters, then the courts are more likely to find a copyright infringement IF the phrase is being used for commercial gain for the person or company using the phrase.

[Note: it is a common misconception that as long as you are not making money off of using a copyrighted work, then it is okay to use it. That is NOT true; but in the case of short phrases it is mostly true. Don’t you just love the law?]

The clearest example is from a California district court case in 1979, where the writer of a short slogan that was used on a greeting card sued a t-shirt manufacturer that was printing the same slogan on t-shirts for sale. The court said that the phrase, “I may not be totally perfect, but parts of me are excellent,” had met a higher standard of originality, uniqueness, and cleverness, and therefore was the type of work intended to be covered by copyright laws – no matter that it was only one sentence.

Keep in mind that some slogans and very short phrases are protected under trademark laws. Trademark overlaps somewhat with copyright, but is an entirely different legal analysis. Trademark does not protect slogans from all other uses, but it will prohibit a use that causes confusion in the mind of consumers, such as when two competing stores use the same name. Stores that serve completely different markets may be legally be able to use the same name, however.

If it sounds confusing, it’s because it certainly can be. But most confusion can be avoided by doing two things – asking permission, and staying away from things that feel like “stealing.”

Remember back when you were in school and got your supplies for the year? There was always a brand new package of notebook paper and a spiral notebook with pages and pages of blank white paper (or purple or green paper, if you were in junior high). When I was young, the empty paper inspired me – what great pictures and stories I could write! As I got a little older the blank paper brought a small anxiety, wondering what type of papers I would have to write for my teachers. And once I was grown, a blank page on my computer screen and an assignment from my employer could positively intimidate me.

I am pleased to report to you that the wide open spaces of my new blog excite me. Copyright law is both simple and annoyingly complex, all at the same time. Yet it is everpresent in this information age, and this blog is intended to present information and issues that will help all those who deal in any way with copyrighted materials to understand the concepts surrounding this law. Those who will find this blog useful include both those who create copyrighted works, such as authors, musicians, programmers, artists and filmmakers, as well as those who use copyrighted works, such as those same authors, musicians, programmers, artists and filmmakers at times, but also web designers, teachers, marketers, business owners, neighborhood newsletter editors, and the like.

By the way, the title of this post, Wide Open Spaces, is also the title of a song written by Susan Gibson and recorded by the Dixie Chicks. I can use it because titles, slogans and other short phrases generally cannot be copyrighted, according to material put out by the US Copyright Office itself. But that’s not the end of the story. Although courts will give the interpretation of the law by the Office great weight, the courts themselves decide on the interpretation of the law. In the case of short phrases, there have been a number of lawsuits brought for infringement of small, even tiny, strings of words. Sometimes courts have held that very short phrases are covered by copyright.

So there you see the simple move into the complex. Which is why a blog like this can probably cover all the wide open spaces of empty white screen ahead of me. Welcome to the journey.