October 20th, 2003

Can borrowing ten words be copyright infringement?

A federal appeals court recently ordered Audi of America and advertising agency McKinney & Silver to pay almost a million dollars in damages for using about ten words in one television commercial. Author(s): Jeffrey Greenbaum.

In 1999, Audi ran a commercial promoting its new TT Coupe. The commercial depicted the car in a garden, with this voiceover:

I think I just had a wake-up call, and it was disguised as a car, and it was screaming at me not to get too comfortable and fall asleep and miss my life.

Unfortunately for Audi and M&S, the artist Brian Andreas had previously created a print that depicted an angel with this text:

Some people don’t know that there are angels whose only job is to make sure you don’t get too comfortable & fall asleep & miss your life.

The artist sued for copyright infringement.  M&S denied that there was copying, claiming that it was just a coincidence, and that the words had occurred to an agency employee at a photocopier one day.  Apparently, the jury didn’t believe the “photocopier as muse” tale, and awarded the artist $965,000.

Does copyright law really protect short phrases?  Can you really get sued for using a few words that appeared somewhere else?
Are short phrases protected?

Copyright protects original works of authorship that have been independently created and that are the product of some minimal degree of creativity.  Words and short phrases, such as names, titles, and slogans are generally not protected, even if they are original or distinctive.

Short phrases are generally not protected, the theory goes, because either they’re expressing nothing more than unprotectable ideas or they’re not the product of a enough creativity to merit protection.  (You may be able to get protection for a short phrase, such as a tagline, from trademark law, however.)

Where are the boundaries?

Copyright law doesn’t tell you specifically how many words you can take before you’re infringing someone’s rights.  Here are some things to keep in mind, however, that may help you to avoid crossing the line.
Copyright only prohibits actual copying.  So, if you create something similar to someone else’s work, without being exposed to that work, chances are you’ll be okay.  When something you’ve created turns out to be surprisingly similar to someone else’s work, however, you’re going to have a difficult time convincing a jury that you didn’t copy – especially when the original work is widely available.

Generally, copying of just a few words is permissible.  It’s going to be almost impossible for someone to claim copyright ownership over just two or three words.  For example, short phrases, such as “listen up,” “Texas thunder,” and “repeat threepeat,” and even longer phrases, such as “contents require immediate attention” and “most personal sort of deodorant,” have been found to be fair game for anyone to use.

Expressions that convey an idea that is typically expressed in a limited number of stereotypical ways – such as “hang in there” or “gift check” – are also generally free for anyone to use.  If the language used in a phrase is dictated solely by functional considerations – such as a list of ingredients – that language may also not be protected.

On the other hand, longer phrases that reflect the original creative choices that have been made are more likely to be protectable, especially when the ideas expressed could have been stated in any number of ways.
Juries are likely to be especially sympathetic to infringement claims based on the use of a short phrase where the original work that the phrase was taken from was also very short.  When more than a third of a very short work has been used – such as in the Audi commercial – the taking seems much more substantial.  And at about $100,000 a word for infringement, that’s a real wake-up call.

This article first appeared in the October 2003 issue of SHOOT magazine.