Law Offices of David L. Duncan
In a November 22, 2019 letter, Caldwell requested that the Office reconsider its initial refusal to register the epigram. Letter from David Duncan to U.S. Copyright Office (Nov. 14, 2019) ("First Request"). After reviewing the work in light of the points raised in the First Request, the Office re-evaluated the claims and again concluded that the work did not contain a sufficient amount of creativity to warrant registration. Refusal of First Request for Reconsideration from U.S. Copyright Office to David Duncan (Mar. 12, 2020) ("Second Refusal"). The Office emphasized in its refusal that the Office does not have a blanket prohibition against the registration of short works, but reiterated that works which constitute the building blocks of creativity, such as common and familiar shapes, colors, words, and short phrases, do not contain enough creative authorship to support registration. Id. at 2.
In a letter dated June 12, 2020, Caldwell requested that, pursuant to 37 C.F.R. § 202.5(c), the Office reconsider for a second time its refusal to register the Work. Second Request. Caldwell made three arguments to support registration of the Work: (1) that as a full sentence, the Work is not subject to the short words and phrases doctrine; (2) that the Work meets the low threshold for creative expression; and (3) that the repeated commercial exploitation of the Work provides some evidence of creativity. Id. at 5, 6,11.
III. DISCUSSION
After carefully examining the Work and considering the arguments made in the First and Second Requests, the Board finds that the Work does not contain sufficient literary authorship to sustain a copyright claim and affirms the Registration Program's denial of the application.
To be registered, all works must qualify as "original works of authorship." 17 U.S.C. § 102(a). As used with respect to copyright, the term "original" consists of two components: independent creation and a sufficient amount of creativity.[1] Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). Generally, short phrases alone are not sufficiently creative to sustain a copyright claim.[2] See 37 C.F.R. § 202.1(a) ("Words and short phrases" are "not subject to copyright"). This is because short phrases "contain a de minimis amount of authorship" and thus cannot be registered, "even if the . . . short phrase is novel or distinctive or lends itself to a play on words." U.S. Copyright Office, Compendium of the U.S. Copyright Office Practices § 313.4(C) (3d ed. 2021) ("Compendium (Third)").
The Work, comprising 15 words, is an unprotectable short phrase. While the names and short phrases doctrine contains no numerical threshold, the Work is similar to other short phrases that courts have found unprotectable. See, e.g., Murray Hill Publ'ns, Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 627, 633 (6th Cir. 2001) (rejecting copyright protection for phrase comprised of three sentences and 15 words: "Good morning, Detroit. This is J.P. on JR in the A.M. Have a swell day."). It makes no difference to the Board’s analysis that the Work is a full sentence. Courts have found that there is no distinction between a single sentence and a phrase—what
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