I May Not Be Totally Perfect But Parts of Me Are Excellent: Copyright Protection for Short Phrases
By Richard Stim, J.D.
"There's a great power in words," wrote Josh Billings, "if
you don't hitch too many of them together." No doubt about it, a well-turned
phrase can have a powerful effect on a reader. A judicious choice of words can
result in the perfect punchline, an incisive aphorism, a moral tenet, or, as in
the case of a haiku-beauty.
But short phrases-perhaps because they're so easily
severable from larger works-are commonly the subject of theft. They're often
plucked and recycled in other literary, musical or artistic works or on
Copyright laws disfavor protection for short phrases. Such
claims are viewed with suspicion by the Copyright Office, whose circulars state
that, "... slogans, and other short phrases or expressions cannot be
copyrighted." These rules are premised on two
tenets of copyright law. First, copyright will not protect an idea. Phrases
conveying an idea are typically expressed in a limited number of ways and,
therefore, are not subject to copyright protection. Second, phrases are
considered as common idioms of the English language and are therefore free to
all. Granting a monopoly would eventually "checkmate the public" and
the purpose of a copyright clauseĎto encourage creativity-would be
So how many words do you have to string together before you
get copyright protection? 10? 20? 100? It's not a matter of numbers.
Whether you can stop someone else from using your literary phrases is dependent
upon the uniqueness and value of the phrases as well as the way in which you
(and the borrower) use them.
Copyright disputes about short phrases end up clustering
into three categories:
- one or more phrases are grouped together in order to prove that
two works are substantially similar;
- a phrase is appropriated to sell a service or product; or
- an author seeks to protect a singular literary phrase.
This article will examine case law in each of these
categories, and also look at the common defenses used by those who appropriate
a phrase or group of phrases.
"You Can't Judge a Book By Its Cover"
Often, in order to prove that a book, article, or other
writing has been infringed, an author will point to one or more similar phrases
that have been copied in the infringing work. (Infringement requires access and
proof of substantial similarity.) Not all similarities, however, amount to
infringement. Separated from the original work, common short phrases are
usually unprotectable. For example, if the only thing in common between two
works is the phrase, "Hip Hop Behind Bars," or the phrase "safety
core" to describe a rope product, that alone is not enough to prove
infringement. Similarly, if two legal publishers use similar subject headings,
neither will be able to claim infringement on that basis alone. Even
if the two works contain dozens or hundreds of similar short phrases, that's
not enough to demonstrate substantial similarity if the short phrases are
common, public domain or do not "exhibit the minimal creativity required for
For example, in one case, the author of a social
history of Jewish migration to San Francisco asserted that factual details,
historical events, and some phrases were duplicated in the defendant's novel
about a wealthy Jewish family. The defendant admitted consulting the
plaintiff's work and taking at least eight descriptive phrases including
"hordes of gold seekers," "the river wound its way between muddy banks crawling
with alligators," and "rekindle old memories." The court of appeals considered
the borrowing of phrases to be insubstantial, noted that facts and historic
events are free for all to use, and ruled for the defendant.
In short, sharing similar phrases, particularly common
descriptive phrases, is usually not enough, by itself, to win a copyright
claim. In order to stop an infringer, the author must either demonstrate that
the phrases exhibit sufficient creativity, or that the taking of the phrases,
along with other elements such as similar plot or characters, amounts to
This can get a little tricky for courts, as they must judge
the level of creativity-never an easy task-and they must weigh the literal
similarities, such as copying of identical phrases, and the
such as the appropriation of a distinctive plot, characters or style. Add to
the confusion that every literary work is a mosaic of these literal and
non-literal elements, and that each poached item has a value by itself and a
value in relation to the rest of the work. In general, if an author can
demonstrate a strong collection of similarities in plot, theme, characters and
common phrases (or dialogue), a court will support a claim of infringement.
In some cases, a writer may popularize one or more public
domain phrases and then seek to stop others from using them. Usually, such
claims are unsuccessful-for example, a songwriter failed to win a claim when
the only similarity between two songs was similar public domain phrases, such
as "night and noon ," or "there will never be another
In another case, a country and western songwriter wrote a
song containing the phrase, "I like to gamble, I like to smoke. I like to drink
and tell a dirty joke." The defendant's song contained the phrases "She don't
drink. She don't smoke. She can't stand a dirty joke." The district court ruled
for the borrower and wisely noted that, "the perfect country and western song
has been described as including drinking, mother, prisons, trains and trucks.
This Court can add to that list without reservation smoking, gambling, loving,
and telling dirty jokes."
There are situations in which one writer can stop another
from copying public domain phrases, but these usually involve some creativity
in the choice, sequencing or ordering of the phrases-for example, the author of
a unique collection of civil war phrases could prevent another publisher from
lifting large segments for a competing work. As one court put it, "[T]hough
╬ordinary' phrases may be quoted without fear of infringement, a copier may not
quote or paraphrase the sequence of creative expression that includes such
"Show Me the Money"
In cases where short phrases are used to sell things, court
decisions appear to follow two general rules:
(a) a court is likely to find that common short phrases used
in advertising or label copy-for example, "FDS is the most personal sort of
deodorant" are, by themselves, usually not protectible and
(b) if a popular phrase is hijacked for a blatant commercial
use-for example, using "E.T., Phone Home" on drinking mugs -courts
are more likely to find infringement.
There are many exceptions to these rules. In the case of
advertising or label copy, for example, when more than the advertising phrases
are borrowed, for example, layout or visual imagery, then a court may be much
more likely to protect one advertiser from infringement by another.
Similarly, even humdrum phrases such as, "Why are we giving away SOLEX Electric
Toothbrush Sets for Only $3?" and, "This is NOT a misprint" may be protected
against copying when they are selected and arranged to mimic a competitor's
In cases involving the use of phrases in connection with the
sale of merchandise, courts are often strongly swayed by the connection of the
phrase with a fictional character or real person. In the case involving "E.T.
Phone Home" drinking mugs, the judge said, "[T]he use of the name . . .
conjures up the image and appeal of the E.T. character names protected under
copyright." A similar result occurred in a case involving, "Look! . . . Up in
the sky! . . . It's a bird! . . . It's a plane . . . It's Superman!" when that
phrase was used as part of a campaign to sell consumer electronics equipment.
Most likely, other famous movie phrases would enjoy similar
protection, particularly if a character association was also made. In a case
involving the sale of busts of Martin Luther King, Jr. advertisements contained
a few short phrases from one of his speeches. Perhaps swayed by the
exploitation of Dr. King's words, a court ruled that the borrowing was an
In these sales-oriented cases, copyright is sometimes
stretched to do the work of trademark law. In the world of trademarks, short
phrases are protected if consumers
associate them with particular goods or services. In some of the cases
described above, the phrases were used for their associative or "endorsement"
power and, under those conditions, courts may accept less significant
similarities to justify a finding of copyright infringement.
"Euclid Alone Has Looked on Beauty Bare"
In the examples above, the cases analyzed situations where a
phrase is derived from a larger work. But what if the phrase is the whole work?
Will copyright ever protect it? The possibility was explored most famously by
Judge Frank in Heim v. Universal Pictures Co., Inc. In Heim, the issue arose as to whether the copyright of a
musical phrase would be enough to justify a finding of infringement. Judge
Frank determined that lack of originality, not brevity, is what prevents the
separate copyrightability of a phrase. This originality could be demonstrated
by a phrase that was so idiosyncratic that its appearance in another work would
preclude coincidence and, as an example, Judge Frank cited Edna St. Vincent
Millay's title and opening line to her sonnet, "Euclid alone has looked on
beauty bare." Or, as copyright scholar Melville Nimmer summed up the standard,
"The smaller the effort (e.g., two words) the greater must be the degree of
creativity in order to claim copyright protection."
Obviously, terse statements such as, "Contents Require
Immediate Attention" or, "Gift Check Enclosed" do not exhibit sufficient
originality. But do statements of advertising
copy, haikus, or jokes, all of which rely on brevity and simplicity, rise to
the necessary level of originality?
One example of the higher degree of creativity necessary for
copyright protection is evidenced by Ashleigh Brilliant, the author of literary
phrases sold on postcards and merchandise. (For examples of Brilliant's
"Pot-Shots," see www.ashleighbrilliant.com.)
In a 1979 case, a company copied two of Brilliant's
phrases-"I may not be totally perfect, but parts of me are excellent" and "I
have abandoned my search for truth and am now looking for a good fantasy"-and
altered a third phrase, all for sale on t-shirt transfers.
The district court acknowledged that the phrases were
distinguished by conciseness, cleverness, and a pointed observation, and ruled
that they were protected by copyright. By fulfilling the higher creative
standards of an epigram, Brilliant's Pot-Shots also satisfied the inverse
relationship between originality and length discussed by Judge Frank and
In Brilliant, the
clever arrangement of a small group of words established the required degree of
originality. However, arrangement of words is not the only means of
demonstrating originality in a short phrase. Evidence of creativity also is
demonstrated by the use of inventive words or language.
For example, in Heim,
Judge Frank also mentioned a phrase from Jabberwocky-"Twas brillig and the
slithy toves"-as an example of sufficient originality. A
similar style of nonsense "code words" prompted Judge Learned Hand to write,
"Conceivably there may arise a poet who strings together words without rational
sequence-perhaps even coined syllables-through whose beauty, cadence, meter and
rhyme he may seek to make poetry."
"The Best Offense is a Good Defense"
An author accused of borrowing one or more phrases from
another work will usually make one (or all) of the following arguments in
- copyright doesn't protect the copied phrases,
- even if the phrases are copyrighted, the borrowing is too small
(or de minimis) to matter,
- even if the phrases are copyrighted, the two works are not
substantially similar, or
- even if the phrases are copyrighted, the borrowing is excused by
the fair use or parody defense.
The first three defenses have already been discussed, above.
Fair use and parody are covered in considerable detail elsewhere on this
Stanford Copyright and Fair Use website. However, it's worth adding an
additional comment or two.
In analyzing the fair use defense when short phrases are
borrowed, a court will aggregate the phrases and weigh the value of the phrases
in relation to the work. Or, put another way, are the phrases the heart of the
work? The more important the phrases are to the work, the harder it often is to
win a fair use battle.
The parody defense, although considered a branch of the fair
use doctrine, has acquired its own factors and characteristics. By its nature,
parody demands some borrowing from an original work in order to "conjure up"
the original. In one case, the composers of the song "When
Sunny Gets Blue" claimed that their song was infringed by "When Sonny Sniffs
Glue," a twenty-nine second parody which altered the original lyric line and
borrowed six bars of the plaintiff's music. The court permitted the parody and
noted that: "[T]he economic effect of a parody with which we are concerned is
not its potential to destroy or diminish the market for the original-any bad
review can have that effect-but rather whether it fulfills the
demand for the original. Biting criticism suppresses
demand; copyright infringement usurps it."
Claiming fair use or parody as a defense has an unfortunate
hitch. The only way to find out if you're right is to have a court rule on the
matter. From a real-world perspective, this often favors the litigant with the
deepest pockets-that is the party who can last the longest in litigation.
However, there are some cases where a borrower has a very strong argument that
fair use will apply-for example, borrowing a few lyric lines of a song in a
review or new article. But when the use of short phrases lacks some
transformative value or fails to offer some insight or commentary-for example,
copying phrases on a T-shirt-the fair use argument is harder to win.
Judge Frank's observation in Heim v. Universal Pictures remains the most insightful guideline for the
protection of short phrases-a literary phrase must be so idiosyncratic that its
appearance in another work would preclude coincidence. What produces this
idiosyncrasy? In parody, it is the interposition of something familiar with
something incongruous. In a character phrase, such as "E.T. Phone Home," it is
the inseparable association between the words and the fictional personality. In
an epigram, it is the demonstration of a highly structured
In order to guess how protectible a phrase may be, the
question must be asked-as in the protection of characters-has enough
development gone into the work so that a line can be drawn separating the
author's expression from that which is in the public domain? Wherever this line
is drawn, it will seem arbitrary, but "that is no excuse for not drawing it . .
If an author has created a uniquely suggestive phrase, then the courts will
protect it under copyright. But if an author's literary phrase is merely a
trivial variation on that which already belongs to the public, copyright will