Only original work product is entitled to copyright protection.
The United States Supreme Court has stated that the level of creativity required for a work to be “original” is extremely low. A work satisfies this requirement as long as it possesses some creative spark, “no matter how crude, humble or obvious it might be.” Feist Publ’ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). Thus, a work that originates from the author and contains any level of creative expression will satisfy the originality requirement. See id. Additionally, a copyrightable work is considered “fixed in a tangible medium” if it can be perceived, reproduced, or otherwise communicated for more than a transitory period, such as an email. See 17 U.S.C. § 102.
However, under the Copyright Act, “[w]ords and short phrases such as names, titles, and slogans” are not subject to copyright. 37 C.F.R. § 202.1(a). When considering phrases, Courts must balance these factors in deciding whether words or short phrases are entitled to protection under the Copyright Act.
In Predator International, Inc. v. Gamo Outdoor USA, Inc., the plaintiff was attempting to enforce its alleged copyright registration for “unsurpassed performance.” When considering this short phrase, a Colorado Federal District Court discussed in its opinion that other courts had found that short phrases, such as “Words Come Alive,” “Earth Protector,” “Chipper,” and “Retail Plus,” were not entitled to protection under the Copyright Act. The Court then held that “unsurpassed performance” was also a short phrase that was not subject to protection under the Copyright Act.
If you are original work product that you would like to seek protection under the Copyright Act, or enforce your rights under the Copyright Act against a third party, please contact Internet Copyright Attorney Mark Ishman from the Ishman Law Firm, P.C. at (919) 468-3266 or mishman @ ishmanlaw.com. Also visit Mark Ishman’s Internet Copyright law web page at http://www.ishmanlaw.com/internet-copyright-lawyer.php.