New England Biz Law Update
A recent 1st Circuit case reminds us that, although copyright law is broad and protective, it does have limits, including triteness: You can’t copyright the wholly banal.
The case, Johnson v. Gordon (Docket No. 04-2475), involved alleged misappropriation of copyrighted melodies and lyrics. The plaintiff had written a song, “You’re the One (For Me),” a version of which (the “short version”) he registered with the U.S. Copyright Office.
The defendants, who may have been exposed to the plaintiff’s work, had produced the song “You’re the One,” which became a hit performed by Sisters With Voices.
The first part of the case reminds us of the importance of registering copyrights in what you want to protect. The plaintiff claimed seven similarities between his song and the defendants’ song. However, four of these came only from his unregistered “long version.”
Although the court agreed that a copyright registration protects elements in an unregistered derivative version that are “borrowed” from the registered version, it concluded that “elements distinct to an unregistered work cannot draw protection from a registered work.”
Therefore, having failed to register the long version, the plaintiff couldn’t base his infringement claim on similarities “contained exclusively in the unregistered long version.”
The case also included a nearly note-by-note comparison of the three musical portions of the plaintiff’s and defendants’ works that the plaintiff’s expert deemed similar. After describing the manipulations and contortions used by the expert to identify similarities, the 1st Circuit, like the trial court, saw non-actionable relationships and coincidences, but no “meaningful degree of similarity.”
The one undeniable similarity the court accepts is the use of the phrase “You’re the One for Me” in the title and lyrics of each song. Unfortunately for the plaintiff, however, not only is the phrase similar, but in the court’s eyes it is just too common.
“[H]undreds of composers have registered songs capturing the same sentiment in the same verbiage. … [T]his lyric is too trite to warrant copyright protection,” according to the opinion. Citing an earlier case, the court reiterated that “clichéd language and expressions that convey ideas generally expressed in a limited number of stereotypical ways are outside the scope of copyright protection.”
Individuals and businesses often become enamored of their words and titles. But just as purely descriptive or generic terms are difficult or impossible to protect under trademark law, banal and commonplace phrases and expressions can be difficult or impossible to protect under copyright law.
If you want the law to protect your words, melodies and other works of authorship from misappropriation:
Howard G. Zaharoff, a shareholder of Morse, Barnes-Brown & Pendleton, P.C. (www.mbbp.com), focuses his practice on representing providers and distributors of technology, content and intellectual property. He has substantial experience in general trademark, trade secret and copyright law; technology development and distribution transactions; joint ventures and strategic alliances; and the sale and licensing of intellectual property. Mr. Zaharoff can be reached at (781) 622-5930 or [email protected]. Morse, Barnes-Brown & Pendleton, P.C. provides sophisticated legal services and practical advice to businesses, from technology start ups to Fortune 500 companies.
