The Contours of Copyright #3: Too Short for Copyright? 01/04/2016Posted by Morse, Barnes-Brown Pendleton in Attorney News, Intellectual Property, Licensing & Strategic Alliances, New Resources, Publishing & Media.
Tags: Contours of Copyright, copyright, Intellectual Property, music, musical composition
It is axiomatic that copyrights do not protect words or short phrases. But how short is too short for copyright? 10 words? 5 words? 3 words? Consider Henny Youngman’s classic 4-word joke, “Take my wife … please.” Is that a copyrightable jocular expression, or an uncopyrightable short phrase (or, for you copyright pros, a merged idea)? The answer is important, not only to comedians, but also to epigrammatists, songwriters, poets … and anyone who wishes to include, in a work they are creating, word sequences they’ve seen used by another.
A recent case, William L. Roberts v. Stefan Kendal Gordy (U.S D.C., S.D. Florida 2015), provides helpful guidance, though not a definitive answer.
Discussion: The plaintiffs, Roberts et al., owned the musical composition Hustlin’, whose chorus consists of the repeated refrain “everyday I’m hustling.” The defendants, Gordy et al., had a hit song, Party Rock Anthem, which included the phrase “everyday I’m shuffling.” When the defendants began marketing their “shuffling” phrase on T-shirts and other merchandise, the plaintiffs sued, arguing that their copyright in the song included a copyright in the “hustlin’” refrain, and therefore they could prevent anyone from copying that refrain, whether in a similar song or standing alone on a garment.
The defendants disagreed, and the court sided with them. Yes, said the court, the plaintiff’s song was entitled to copyright protection. However, “copyright protection does not automatically extend to every component of a copyrighted work.” Rather, because “originality” is the sine qua non of copyright, and short phrases are common and unoriginal, the copyright in a work does not extend to individual short phrases (or, of course, single words) in the work. This doesn’t mean, the court explained, that the presence of “ordinary” phrases deprives a work of copyright protection; but it also doesn’t mean that the copyright umbrella shelters every word or phrase contained in a copyrighted work.
Or, as the court puts it: “The question presented … is not whether the lyrics of Hustlin’, as arranged in their entirety, are subject to copyright protection. The question is whether the use of a three-word phrase appearing in the musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constitutes an infringement of the musical composition Hustlin’. The answer, quite simply, is that it does not.”
To add insult to injury, the court also notes that the terms “hustling” and “hustlin’” were used in many earlier songs, and that the plaintiffs never asserted that the phrase “everyday I’m hustlin’” originated with them – which in itself could have killed their copyright claim (to be copyrightable, a work needn’t be novel, as in the patent sense of never before appearing anywhere, but does need to be original, in the copyright sense of having composed it oneself without copying from another). Finally, says the court, there is no substantial similarity between the original musical composition, containing the (uncopyrightable) phrase “everyday I’m hustlin’,” and the defendant’s T-shirts, containing the (uncopyrightable) phrase “everyday I’m shuffling.” In short, none of the plaintiff’s original expression was infringed by the defendant’s apparel.
An Interlude for Copyright Aficionados: There was nothing earthshaking about this decision, though it is interesting to read the court’s sampling of many short phrases that failed to win copyright protection, including: “so high” (2 words), “get it poppin’” (3 words), “fire in the hole” (4 words – uh-oh, Henny), “most personal sort of deodorant” (5 words), and “You Got the Right One, Uh-Huh” (5 words, plus an “Uh-Huh”). So, one might conclude, a half dozen words or more are probably the minimum required for copyrightability.
Perhaps the reason this court – and no court I’m aware of – has stated a bottom line number below which copyright cannot apply is that no one can be absolutely certain that a creative author couldn’t be original in even a handful of words. Let’s cheat, make up a word, and stick it in a short phrase: “She’s my joyzilla mama.” Four words – really 3 plus a mashup – which have never appeared before (a Google search more or less confirmed this). Can I use copyright law to prevent another person from using my original phrase in a song or on a T-shirt?
My answer is a definite “maybe.” The epigrammatist Ashley Brilliant has successfully registered – and once successfully asserted – copyrights in his epigrams, many of which are quite short (such as, “When all else fails … Eat” = 5 words). Poets and songwriters often feel that their short but creative phrasings are worthy of protection. So maybe we can’t state an absolute bottom line because we can’t guaranty that a brilliant writer or composer won’t dash our assumptions.
Conclusion. Still, it’s hard to imagine anyone successfully claiming copyright in any 2- or even 3-word (real words, not coined) phrase – if for no other reason than given the relatively small number of meaningful 2- and 3-word phrases, and the exhaustive output of English speakers, each of those short phrases would have already appeared so frequently that no one using such a phrase could convincingly assert it originated with them, or that they should have the right to keep anyone else from using it.
So, unlike Roger Bannister running a mile under 4 minutes, the possibility of someone writing a copyrightable phrase of under 4 words (probably 5, possibly 6) should stand the test of time.
For more information on this topic, please contact Howard Zaharoff.