The Copyright Handbook

The copyright law does not permit this,

  This is because the ideas and facts in factual

  since it would discourage authorship of new

  CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 117

  works can often be expressed only in one

  lantern meant that the British were coming

  particular way or only in a few ways, while

  by land and two by sea? The facts pretty

  the ideas contained in novels and similar

  much dictate the form of expression here.

  works can usually be expressed in a wide

  As a result, if your paragraph were

  variety of ways.

  protected by copyright, nobody else could

  For example, assume you wish to write

  ever write a factual account of Paul Revere’s

  an unadorned factual account of Paul

  ride without your permission. This the

  Revere’s famous midnight ride during the

  copyright law cannot permit, since it would

  Revolutionary War. You research Revere’s

  effectively give you a monopoly over the

  life and create a work containing, in part,

  facts concerning Paul Revere’s ride. To

  the following sequence of words:

  prevent this, the facts of Paul Revere’s

  On April 18, 1775 the Boston minutemen

  ride and the words you used to express

  learned that the British intended to march on them would be deemed to merge. Some Concord with a detachment of 700 men. Paul courts would hold that your paragraph Revere arranged for a signal to be flashed from was in the public domain, and could be the steeple of the Old North Church in Boston. copied verbatim (or used in any other way) Two lanterns would mean that the British

  without your permission. Other courts

  were coming by water, and one, by land.

  would not go quite this far; they would

  The particular selection and arrangement give your paragraph limited protection by

  of words in the above paragraph appears to

  holding that your paragraph was protected

  satisfy the three requirements for copyright

  from unauthorized verbatim copying, but

  protection: fixation, originality, and minimal nothing else. (See Landsberg v. Scrabble creativity. Does this mean that if anyone

  Crossword Game Player, Inc., 736 F.2d

  used these three sentences without your

  485 (9th Cir. 1984); Morrissey v. Procter &

  permission they would be liable for copyright Gamble Co., 379 F.2d 675 (1st Cir. 1967).) infringement? Because of the merger doctrine,

  In contrast, the merger doctrine would

  the answer is probably not. This is because if not be applied to a work of fancy—for

  anyone else wrote a brief factual account of

  example, a poem—about Paul Revere’s ride.

  Paul Revere’s ride, it would necessarily have

  Consider this:

  to contain sentences looking very much like

  Listen, my children, and you shall hear

  those in your paragraph. This would be so

  Of the midnight ride of Paul Revere,

  even though the author had never read your

  On the eighteenth of April, in Seventy-five.

  account—there are just not many different

  Hardly a man is now alive

  ways to express the facts described in your

  Who remembers that famous day and year.

  paragraph. For example, how many different

  He said to his friend, “If the British march

  words can an author use to explain that one

  By land or sea from the town tonight,

  118 | THE COPYRIGHT HANDBOOK

  Hold a lantern aloft in the belfry arch

  protection than an unadorned factual account.

  Of the North Church tower as a signal light, Similarly, Loren Eiseley, Stephen Jay Gould, and One, if by land, and two, if by sea.

  Lewis Thomas have all written books about

  These stanzas were written by Henry

  science whose language transcends the way

  Wadsworth Longfellow over 100 years ago

  their subjects are normal y handled. The prose

  and are thus in the public domain because

  in their books receives far more protection than

  that of a run-of-the-mill scientific treatise. The

  the copyright has expired—see Chapter 9,

  moral is that the more effort you take to make

  “Copyright Duration.” But let’s pretend

  your writing transcend the mundane and purely

  for purposes of our example that they were

  functional, the more copyright protection your

  written just the other day.

  work will receive.

  This verse conveys almost exactly the

  same factual information as your paragraph

  above, yet the facts and expression would

  not be deemed to merge. Why? Because the Words, Names, Titles, Slogans,

  author’s words are embellished and highly

  and Other Short Phrases

  distinctive. The sequence of words has not

  Individual words are always in the public

  been dictated solely by the facts. Indeed, it

  domain, even if they are invented by a par-

  is the unique word sequence itself, not the

  ticular person. Names (whether of individuals,

  facts, that is the work’s main attraction.

  products, or business organizations or groups),

  No one needs to copy this particular word

  titles, slogans, and other short phrases (for

  sequence in order to convey the same facts

  example, “I’d walk a mile for a Camel” and

  or to write another work of fancy about

  “No Smoking”) are not protected by copyright

  Paul Revere’s ride. A person who copied

  law even if they are highly creative, novel, or

  even the first two lines would probably be

  distinctive, and will not be registered by the

  found to have infringed on the copyright in Copyright Office. (37 CFR § 202.1(a).) How-

  the poem.

  ever, these items—especial y slogans—may

  be protectable under the trademark laws. (See

  Chapter 1, “Copyright Basics.”)

  TIP

  Nonfiction writers should not get

  Titles may be protectable under state law

  the idea that they need to start writing in

  poetic meter to obtain copyright protection.

  Although titles are not protected by the

  But the more distinctive their words, the more

  Copyright Act, they may be protected

  protection they will receive. An elegantly written under state and federal unfair competition biography of Paul Revere will receive more

  laws (that is, laws that prohibit unfair

  competitive business practices). Under these

  CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 119

  laws, an author may protect a title from

  Titles may be protectable as trademarks

  unauthorized use if the following are true:

  The title of a single book or other written

  • The title is strongly identified in the

  work cannot be protected as a trademark.

  public’s mind with the author’s work.

  However, trademark protection may be

  • The author proves that the public

  available for:

  will be confused if the title is used in

  • titles for a series of books—for example,

  another work.

  the title for a series of
fishing guide

  This prevents a person from passing off

  books called Fishing Hot Spots that was

  or palming off a work on the public—that

  protectable as a trademark. ( Fishing Hot

  is, publishing a work with the same or

  Spots, Inc. v. Simon & Schuster,

  similar title as a previously published, well-

  720 F.Supp. 746 (E.D. Wis. 1989).)

  known work in the hope that people will

  • titles of newspapers, magazines, and

  buy it because they confuse it with the well-

  other periodicals—for example, the

  known work.

  magazine called Atlantic Monthly.

  EXAMPLE: A successful play called The Gold

  ( Atlantic Monthly Co. v. Frederick

  Diggers was made into a film entitled Gold

  Ungar Publishing Co., 197 F.Supp. 524

  Diggers of Broadway. The film’s producers

  (S.D. N.Y. 1961).)

  sued the producer of a subsequent film

  However, if the title describes the contents

  called Gold Diggers of Paris for passing off.

  of the work—which is probably the case

  The court held that it was unlawful for

  with most titles—it must have “secondary

  Gold Diggers of Paris to be marketed under

  meaning” to be eligible for trademark

  that title, at least without a conspicuous

  protection. This means that the title must

  disclaimer that the picture was not based

  become distinctive in the minds of the

  on the play or the earlier picture. The court

  public over time through long, widespread

  found that the title “Gold Diggers” was

  use or intensive advertising. For example,

  strongly identified in the public’s mind

  the title Aviation Magazine was found to be

  with a series of films based on the original

  descriptive of the magazine’s contents and

  play. Moreover, use of the words “Gold

  had to acquire secondary meaning to be

  Diggers” in the title of the defendants’ film

  protectable as a trademark; the court decided

  was unfair and misleading, because they

  it lacked such meaning. ( McGraw-Hil Pub.

  would represent to the public that the film

  was produced by Warner Bros. Pictures and

  Co. v. American Aviation Assoc., Inc. , 117

  based on the play. ( Warner Bros. Pictures,

  F.2d 293 (D. D.C. 1940).) But the title Photo

  Inc. v. Majestic Pictures Corp., 70 F.2d 310

  Play Magazine—although descriptive—was

  (2d Cir. 1934).)

  found to have attained secondary meaning

  120 | THE COPYRIGHT HANDBOOK

  and was entitled to protection. ( Photoplay

  by federal copyright law. The copyright is

  Pub. Co. v. La Verne Pub. Co. , 269 F.2d 730 owned by the speaker. Typical y, the person (3d Cir. 1921).)

  who writes down or records the speaker’s

  For a detailed discussion of trademarks,

  words will have the speaker’s permission

  refer to Trademark: Legal Care for Your

  to use the quotes. Such permission may be

  Business & Product Name, by Stephen Elias

  expressed or implied by the fact that the

  and Richard Stim (Nolo).

  speaker consented to an interview.

  In addition, a conversation reconstructed

  Quotations

  by an author from memory, rather than

  quoted verbatim from written notes or a

  The author of a news story, biography,

  recording, may be protectable by the author

  history, oral history, or similar work may

  (not the person who made the original

  not claim copyright ownership of statements remarks) if some originality was involved in made by others and quoted verbatim in the

  reconstructing the conversation. ( Harris v.

  work. Reason: A verbatim quotation of what Mil er, 50 U.S.P.Q. 306 (S.D. N.Y. 1941).) someone else says is not original.

  Moreover, the selection and arrangement of

  EXAMPLE: The author of a book about

  all the quotations in a book of quotations

  motion pictures included, in a section on

  may be a protectable compilation, although

  John Wayne, quotations from third-person

  the individual quotations are not protected.

  interviews and excerpts from two letters

  ( Quinto v. Legal Times of Washington,

  never previously published that were

  506 F.Supp. 554 (D. D.C. 1981).) One

  unearthed through the author’s research.

  or more of the individual quotations in

  Subsequently, Newsweek magazine published such a book could be copied without the an obituary of Wayne that used quotations

  compiler’s permission, but verbatim copying

  from the interviews and letters contained

  of the entire book would infringe on the

  in the author’s book. The author sued

  compiler’s copyright.

  Newsweek for copyright infringement and

  But there are many instances where

  lost. The court held that the author held no

  quotations are in the public domain. For

  copyright in the quotations because they

  example:

  were not original—that is, the author didn’t

  • A quotation by a federal government

  say them, other people did. ( Suid v. Newsweek

  employee spoken as part of his duties

  Magazine, 503 F.Supp. 146 (D. D.C. 1980).)

  is in the public domain. This includes

  However, this doesn’t mean the quotations

  official speeches by the president and

  are always in the public domain. If the quote

  Congresspeople.

  is written down or otherwise recorded with

  • Quotations that are written down and

  the speaker’s authorization, it is protected

  published enter the public domain when

  CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 121

  the copyright in the published work

  scorecards, address books, diaries, report

  expires. (See Chapter 9, “Copyright

  forms, and order forms.

  Duration.”)

  However, forms that themselves

  • Quotations that are simply short phrases convey information are protected and

  may also be in the public domain.

  may be registered. The problem with this

  • Quotations from public domain

  distinction is determining when a form

  sources—for example, from a book

  does and does not convey protectable

  whose copyright has expired or never

  information. Even a true blank form—

  existed, such as a Shakespeare play or

  that is, a form consisting primarily of

  the King James version of the Bible—

  blank space to be filled in—can convey

  are in the public domain. Republishing information. The columns or headings

  them in a new work does not revive

  on a blank form may be interlaced with

  their copyright.

  highly informative verbiage. Moreover, the

  In addition, for a quotation to be copy-

  configuration of columns, headings, and

  rightable, it must be written down or

  lines may itself convey information.

  recorded with
the speaker’s authorization.

  The courts have been inconsistent in

  A quotation recorded without the

  interpreting the blank form rule and

  speaker’s authorization is not protected by

  its information conveyance exception.

  copyright. Good examples are the many

  Copyright protection has been denied

  phone conversations Linda Tripp had

  to such items as charts used to record

  with Monica Lewinsky that Tripp secretly

  emergency room patients’ symptoms

  recorded without Lewinsky’s permission.

  consisting of blocks to be filled in ( Utopia

  Monica’s portion of these conversations is

  Provider Systems, Inc. v. Promed Systems,

  not protected by the federal Copyright Act. LLC, 596 F.3d 1313 (11th Cir. 2010)).

  Unless they can be protected under state

  Examples include a time log chart which

  law, they are in the public domain.

  graphed hours in the business day on the

  vertical axis, and the day’s project and

  Blank Forms

  activities on the horizontal axis ( Januz

  Marketing Communications, Inc. v.

  Blank forms designed solely to record infor-

  Doubleday & Co., 569 F.Supp. 76 (S.D.

  mation are in the public domain. The Copy-

  N.Y. 1982)); and a medical “superbill” form

  right Office will not register such items. (37

  containing spaces for patient information

  CFR § 202.1(c).) According to the Copyright and lists of procedures and diagnoses to be

  Office, this includes such items as time cards, performed by doctors ( Bibbero Systems v.

  graph paper, account books, bank checks,

  Colwel Systems, Inc., 893 F.2d 1104 (9th

  Cir. 1990)).

  122 | THE COPYRIGHT HANDBOOK

  Compilations of Forms

  choice examination, designed to be graded

  by an optical scanning machine ( Harcourt,

  To make things even more complicated,

  Brace & World, Inc. v. Graphic Controls

  works consisting of forms designed solely

  Corp., 329 F.Supp. 517 (S.D. N.Y. 1971)).

  for recording information may nevertheless

  The general rule appears to be that the

  be protectable as compilations if originality

  more word sequences (as opposed to simple

  has been employed in selecting which items

  headings) a form contains, the more likely

  of information are to be recorded, and

  it is to be protectable. Forms that contain

  in the arrangement of such items. In this

  substantial textual material—for example,

  event, copyright protection extends only

  insurance policies, contracts, and other legal