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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.”
“Like 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., ___ F.3d ___ (10th Cir. November 3, 2011). 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.
If not verbatim copying the degree of “similarity” needed to prove a case of copyright infringement in “substantial.” In a notable case a couple of years ago by a cookbook author aggrieved by another author allegedly poaching in her niche (sneaking vegetables into children’s food) the court in an unpublished opinion had this to say: “We are not persuaded. Stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted.” The court continued (debunking the claim still further) that “to the extent the two works have general and abstract vaguely similar titles and inclusion of illustrations of prepared dishes, health advice, personal narrative, descriptions of how to make purees, instructions for preparing dishes, and language about children’s healthy eating — the district court correctly concluded that these elements do not raise a fact issue for trial because they are ‘scenes a faire,’ or ‘unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity’,” Lapine V. Seinfeld, 375 Fed.Appx. 81 (2nd Cir. 2010).
Scenes a faire (more generally associated with fiction) are generic elements defined as sequences of events that “necessarily result from the choice of a setting or situation.” Take any exceptional work of literary or dramatic art and you will find stock situations elevated to art by the author’s craft and expressive skill. It is not ideas or concepts that are protected by copyright, but the manner in which they are given life with language. “[T]here can be no copyright in the `ideas’ disclosed but only in their `expression’,” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). Copyright is “limited to those aspects of the work-termed ‘expression’-that display the stamp of the author’s originality,” Harper & Row v. Nation Enters., 471 U.S. 539, 547 ) (1985). What copyright protects is further parsed in the “Tree House” and “demigod” cases, Stiles v. Harperollins Publishers LLC, 10 Civ. 2605 (SDNY 8/5/11) a couple of months ago and even more recently in Ditocco v. Riordan, 1- Civ – 4186 (SDNY 9/20/11).
Plaintiff’s book in Stiles contains “step-by-step illustrations of how to build [a] tree house.” Defendant’s book includes a chapter entitled “Building a Tree House” and has “hand-drawn illustrations embedded in paragraphs of text.” The defendant’s illustrations are not dissimilar to the plaintiff’s but similarity flows from the project. The court concluded that “[a]lthough there are obvious similarities between the tree house designs and illustrations, ‘the similarities do not go beyond the concepts and ideas [and process] contained in plaintiffs’ drawings.” If the “total concept and overall feel” of the two works are distinct, there is no infringement. “[G]eneralized ideas about how to arrange wooden planks to form a square platform is not copyrightable.” Similarity such as there may be between parties’ works limited to hackneyed elements cannot furnish the basis for finding substantial similarity.
In the demigod case, plaintiffs’ two book series recounts the adventures of a modern day teenager descended from the Greek mythological hero Perseus who is “summoned to fight ancient battles in order to save the world, all the while balancing the demands of school, sports, friends, love, and family back at home.” Defendant’s five book series tell the first-person story of an adolescent demigod. “Percy [short for Perseus] and his fellow demigods battle creatures from Greek mythology on their adventures across modern-day America, with the ultimate objective to prevent the rise of the titan Kronos.” “[T]he shared name Percy derives from the hero Perseus … a character unquestionably in the public domain.” Differences include for Perseus different paternity, Zeus and Poseidon.
Similarity of characters, situations and scenes drawn from cultural materials and quotidian events are original only to the extent of the creative language in which tales are told. The court in Ditocco pointed out that “expression [in narrative structure, characters, themes, setting, plot and scenes] varies considerably in both works.” The same is also true for preparing food and building tree houses. “[I]n the end [the] inquiry necessarily focuses on whether the alleged infringer has misappropriated ‘the original way in which the author as “selected, coordinated, and arranged” the elements of his or her work,” citing earlier cases on the issue.
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