Law Offices of David L. Duncan
matters is the creativity of the work. See Stern v. Does, 978 F. Supp. 2d 1031, 1041 (C.D. Cal. 2011) (holding a single sentence sent to an email listserv not protected by copyright because "the copyrightability of a very short textual work—be it word, phrase, sentence, or stanza—depends on the presence of creativity"); cf. Compendium (Third) § 313.4(C) (noting catchphrases, mottos, and slogans, types of writing which may present as full sentences, are not protected by copyright, thereby making no distinction between full sentences and fragments).
Standing alone, the grammatical structure of the epigram does not present an appreciable amount of creative authorship. Grammatically, the words of the epigram are arranged in an obvious and expected format. The sentence comprises two phrases separated by a comma, following the format of a general conditional sentence. In this type of conditional sentence, the first part of a phrase provides a general truth of an unspecified time, followed by a statement of generalized circumstances.[1] This format is a common rhetorical arrangement used by authors and does not reflect creative or unusual structural choices.
Turning to the substance of the epigram, the Office is mindful of the fact that copyright is concerned with the originality of the expression, not the subject matter. See Foxworthy v. Custom Tees, 879 F. Supp. 1200, 1218 (N.D. Ga. 1995). The 15 word-epigram, standing alone, presents at most de minimis authorship, and does not present an appreciable amount of creativity beyond the common words and phrases already present in the public consciousness. Words and phrases that enjoy a robust existence in the public consciousness are not sufficiently creative to support copyright protection. See, e.g., Peters v. West, 692 F.3d 629, 635 (7th Cir. 2012) (noting that the maxim "what does not kill me, makes me stronger" lacks the requisite originality to be protectable); Acuff-Rose Music, Inc. v. Jostens Inc., 988 F. Supp. 289, 294 (S.D.N.Y. 1997) (finding a lack of originality in the phrase “if you don't stand for something, you'll fall for anything"). A phrase need not be ubiquitous to be a part of common parlance. See generally Winstead v. Jackson, 509 F. App'x. 139, 144–45 (3d Cir. 2013) (considering numerous short words and phrases, including "the strong take from the weak but the smart take from everybody," and finding that they are "common in general or common with respect to hip hop culture, and do not enjoy copyright protection" (emphasis added)). As stated in the Second Refusal, the Office does not question the independent creation of the Work. While the text of the epigram may not be as pervasive as the maxims referenced in Peters and Acuff-Rose Music, the epigram nevertheless comprises words and phrases that are common with respect to public discourse on concepts of society and self, and are present to varying degrees in 20th and 21st century texts, including many that predate the Work.[2]
- ↑ Sarah Kupperberg, Conditional Sentences, https://www.sas.upenn.edu/~struck/classes/latin309/syntax/conditional.html (last visited Aug. 25, 2022).
- ↑ See, e.g., Albert Camus, The Rebel: An Essay of Man in Revolt (Vintage Books, 1956) (The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.); Julian Hall, Do you profit from your employees low self esteem?, BusinessMatters (Sept. 24, 2013), https://bmmagazine.co.uk/in-business/low-self-esteemers-high-achievers/; Anthony Anaxgorou, The Blink that Killed the Eye (Jacaranda Books, 2014) (Rebellion is when you look society in the face and say I understand who you want me to be, but I’m going to show you who I actually am.); Rachel Wells, Poet Melissa M. Tripp explains how poetry lets us communicate our anxiety and celebrate ourselves, Hello Giggles,
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