Re: Aphorisms and Copyright

On Wed, August 19, 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> On 8/18/98, Howard G. Zaharoff <hgz[_at_]buslaw128.com> wrote:
> >
> > As for the potential copyrightable of short works (in this case,
> > one-liners) see Foxworthy v. Custom Tees, 879 F. Supp 1200, 1219.
>
> Unfortunately, Foxworthy does not address the copyrightable subject
> matter issue of the jokes. The defendant in Foxworthy apparently
> contended: (1) because one of plaintiff's books was a compilation, the
> registration did not cover the components of the compilation and (2) the
> jokes were not original to plaintiff. The court found both assertions
> to be without merit, but the court never discussed the copyrightability
> of short jokes. One wonders why. Was it the incompetence of defense
> counsel, or was there something else going on?

Although you may be technically correct -- the lack of copyrightable subject matter was never raised explicitly by the defense -- the case may be more germane than it at first appears. In responding to the defense of non-originality, the court writes: "...all of the jokes copied by the defendants were not only his own ideas, but his own expression. His expression clearly evidenced a 'modicum of intellectual labor' [quoting Feist]." Since all the jokes at issue were one-liners, it suggests that this court was willing to assume that they contained copyrightable subject matter (though I admit the issue wasn't put squarely before them).

Howard G. Zaharoff
<hgz[_at_]buslaw128.com> Received on Thu Aug 20 1998 - 23:08:56 GMT