Q: Can copyright
protection attach to book titles, short phrases or slogans?
A: Probably not, but this
may change depending on how much protectable content there is. The general rule is that “a combination of
unprotectable elements is eligible for copyright protection only if those
elements are numerous enough and their selection and arrangement original
enough that their combination constitutes an original work of authorship.” Satava
v. Lowry, 323 F.3d 805, 811 (9th Cir. Cal. 2003). The majority of courts have held that titles
and short phrases do not meet this minimum requirement.
See, e.g., Narell v.
Freeman, 872 F.2d 907, 911 (9th Cir. Cal. 1989) (“Ordinary phrases are not
entitled to copyright protection. . . Phrases and expressions conveying an idea
typically expressed in a limited number of stereotyped fashions are not subject
to copyright protection.”); Yu Zhang v.
Heineken N.V., 2010 U.S. Dist. LEXIS 121084 (C.D. Cal. May 12, 2010) (“Words
and short phrases such as names, titles, and slogans; familiar symbols or
designs; mere variations of typographic ornamentation, letter or coloring are not
subject to copyright.”); Alberto-Culver
Co. v. Andrea Dumon, Inc., 466 F.2d 705, 710 (7th Cir. Ill. 1972) (“ 'Brand
names, trade names, slogans, and other short phrases or expressions cannot be
copyrighted, even if they are distinctively arranged or printed.”); CMM Cable Rep v. Ocean Coast Props., 97
F.3d 1504, 1520 (1st Cir. Me. 1996) (“copyright protection simply does not
extend to “words and short phrases, such as names, titles, and slogans”).
Further, the U.S. Copyright Office's regulations
specifically exclude from copyright protection “words and short phrases such as
names, titles, and slogans . . . .” 37 C.F.R. § 202.1(a). The Second Circuit
has endorsed this principle as a “fair summary of the law.” Kitchens
of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir.
1959).
It should be also noted that copyright protection protects
only against copying of the actual expression of an idea, and does not protect the
idea itself. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 208 (3d Cir.
Pa. 2005) (“It is a fundamental premise of copyright law that an author can
protect only the expression of an idea, but not the idea itself”).
Allen M. Lee Mr. Lee’s practice
focuses on business, corporate and intellectual property matters, including the
creation, protection and exploitation of intellectual property assets. For more information contact: Allen M. Lee, a
Professional Law Corporation, Tel: (408) 249-2735, Email: info@allenmlee.com, Internet: www.allenmlee.com.
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