Re: Re: T-shirt Print and the blurry line between copyright trademark unfair competition

On Wed, 20 Apr 2005, Carol Busby wrote:

> > So in what way, shape, or form do any of these
> >companies have entitlement to copyright
> >protection of this phrase if at all?
>
> They don't. As them for a copy of their
> registration if they bug you. I had someone
> assert to a client that he owned "Mean People
> Suck." We asked for the registration and never
> heard another word.

I think Carol's answer to the question is perfectly correct, but I think the wrong question is being asked.

The question being asked is whether a copyright can be obtained in a short phrase, and by and large, as has been pointed out, it can't.

The question that should be asked is whether copyright infringement lies where a putative infringer copies only a short phrase. If that short phrase is the entire allegedly copyrighted work, then the two questions, as a practical matter, amount to the same thing and reach the same result.

But if the short phrase is part of a larger work, then the issue of copyrightability of the phrase is not the issue. The issue is whether the taking of a short phrase from a larger copyrighted work is infringement.

In some jurisdictions, where a showing that a taking is not "de minimus" is a component of proof of infringement, this will be an issue of the prima facie case of infringement. Otherwise, it comes up as part of a fair use defense.

I personally believe that copyright ought not give a monopoly over short phrases, so that the result *ought* to be the same as if we were looking at copyrightability of the phrase itself. But there's no guarantee of that and there certainly are reported cases where use of short phrases such as "rolling stock" and "E.T. phone home" were found to be infringements of the larger works from which they were taken. Received on Thu Apr 21 2005 - 03:40:56 GMT