The Protectability of Short Phrases (Archive)

While iconic catchphrases from TV and film can hold significant equity, protection of them can be spotty. Scott Hervey and Tara Sattler talk about the protectability of short phrases on this archive episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
“Show me the money.” “Who are you going to call?” “Go ahead, make my day.” These are a few iconic phrases with significant equity, but protection of catchphrases like these is spotty. We’re going to talk about the protectability of short phrases on this next installment of The Briefing by Weintraub Tobin. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. Tara, thank you for joining us.

Tara:
Thanks for having me, Scott. Glad to be here.

Scott:
So, Tara, we deal with this quite a bit. Iconic short phrases that come up usually in script search reports. Now, these phrases are worth their weight in gold, and the creators of these short phrases would probably like to prevent others from using those phrases under any circumstances. But that’s not always the case.

Tara:
Yeah, you’re right, Scott. So let’s first talk about quoting a short phrase in another first creative work, such as in a book, TV show, movie, or song. In order for the author of the short phrase to prevent it from being quoted in such a manner, that short phrase would have to be protectable under copyright law, and that isn’t the case.

Scott:
That’s right. Short phrases are not protectable under U.S. copyright law. According to a copyright office circular, short phrases such as slogans are unprotectable because they contain an insufficient amount of authorship, no matter how creative or catchy they may be. The copyright office will not register short phrases, even if they’re novel, distinctive, or lend themselves to a play on words.

Tara:
And if a work is not protectable under copyright, then it cannot be the subject of a copyright infringement claim. But that doesn’t mean that all uses of a third party’s short phrase are always okay.

Scott:
That’s right. While the quotation of a short phrase in books or in movies may not be actionable, the use of let’s get ready to rumble in connection with the sale of goods or services could certainly bring a lawsuit.

Tara:
It likely would. Michael Buffer, the well-known wrestling and boxing announcer, owns a registered trademark for “let’s get ready to rumble” and has been quite active in policing its use.

Scott:
He’s been very active in policing its use. Trademark protection is the best form of IP protection for such short phrases. Short phrases are very well suited for trademark protection as long as such phrase is distinctive and they’re used in connection with goods or services.

Tara:
Just do it is a great example of a short phrase that became a well-known trademark. But what about a quote from a movie?

Scott:
Well, if it’s a quote like ET phone home, that could be protectable for merchandise but not likely for the movie itself.

Tara:
Yeah, that’s right. And the same applies to may the force be with you.

Scott:
The problem that one may encounter is when is a short phrase not a short phrase? Right. When does it become longer material such that there’s a sufficient amount of authorship and thus protectable under copyright law? I like to think that if it’s more than a sentence or two, that’s when there’s enough authorship that it’s protectable under copyright law.

Tara:
I would agree with that. And I also think it matters what is included in those sentences, because another element that the copyright office considers in what material can be protected by copyright is originality.

Scott:
Right. But we all know from the FIS case that the organization of a telephone book can be sufficient to meet that level of originality. So it can be a low threshold. Obviously, if it’s the same words over and over again for four sentences, it’s probably not original enough to suffice for copyright. I kind of liken it, too. Is, is it a quote or is it a stanza or a poem? And if it’s just a quote, then it’s not copyrightable and it is okay to be used. But if it’s longer than that, then it requires clearance. But also, we’re only talking about U.S. copyright law. We’re not talking about protection under foreign law, which, granted, I’m not an expert on, but there is the implication of moral rights and attribution under moral rights in certain foreign territories. When you have the use of phrases like this, and it’s questionable, I don’t know if French copyright law has the same or Australian copyright law has the same rules or the same requirements that we have such that short phrases like this are not protectable.

Tara:
That’s right. Copyright law in different countries. Really, there’s quite a wide variety among all the different countries out there.

Scott:
Yeah. And when you’re making a product like a television show or a motion picture that’s going to air all over the world, you kind of have to think about that. You have to think about clearance from a global perspective as well because just because something might not be actionable in the United States or protectable in the United States or be in the public domain in the United States does not mean that it’s not protectable or in the public domain in other countries.

Tara:
Yeah, exactly. Like always, there’s a lot for us to think about.

Scott:
Right. Thanks for joining me today, Tara.

Tara:
Well, Scott, I think that’s a wrap. And I really enjoyed talking with you about this today. I hope everyone enjoyed this installment of the briefing by Weintraub Tobin. We have a lot more content, over 100 episodes. If you want to subscribe to, listen and hear more, you can find us on your podcast, app or YouTube. Thank you.