August 27th, 2009 Posted in Copyright | No Comments »
I’m trying to fill out paperwork with a client before his arraignment in federal court. The client is being somewhat cantankerous. After a making it through the language in the indictment, he states:
“my name is copyrighted.”
I respond: “OK, is there an issue?”
He responds: “I can’t be indicted, how can they use my name, it’s copyrighted.”
I respond: “This is an issue you can bring up with the court at a later time and date.”
Fast Forward. We’re now in court before the Magistrate Judge. Half way through the Judge’s monologue my client interrupts: “you have to let me go…I can’t be prosecuted…my name is protected by copyright and I didn’t authorize [its] use.” After a few moments of silence, the court, clearly at a loss for words, responds by stating “today is an initial appearance, we can discuss the issue of your name later.”
The real answer: You can allege all you want that your name is copyrighted, but it doesn’t make a difference, because names aren’t copyrightable. Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.
37 C.F.R. Sec. 202.1 (2004) states: “The following are examples of works not subject to copright and applications for registration of such works cannot be entertained: (a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents….”
The Third Circuit summed up the policy behind this regulation when it resolved a part number (as in machine part) copyright assertion in Southco, Inc. v. Kanebridge Corp, 390 F.3d 276 (3rd Cir. 2004). The court gave two reasons for denial of copyright protection: (1) “[a] short phrase such as a part number [or name] typically lacks any creativity whatsoever” as otherwise required by copyright law, and (2) “extending copyright protection to part numbers [or names] would unduly interfere with the legitimate use of the numbers in question. Because the owner of a copyright “has the exclusive rights” “to reproduce the copyrighted work,” 17 U.S.C. Sec. 106, if a part number (say, 471020210…) were copyrighted, any use of the number would potentially infringe the copyright. Moreover, if Southco’s nine-digit numbers are protected, would there be a principled basis for denying protection to a number with, say, seven or five digits? Could a company or person thereby obtain the exclusive right to use the number 4,710,202 or 47,102? In light of the huge number of part and product numbers (and other analogous numbers) that now exist, this prospect gives reason for concern. Although the fair use defense would presumably protect the use of such numbers in most situations, fair use is an affirmative defense and may impose an undue burden.”
Similar to the rationale used in Southco, personal names do not carry the creativity necessary to obtain copyright, see Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Also, allowing individuals to copyright personal names would “unduly interfere” with the legitimate use of the panoply of names in existence today, and names created in the future. I believe in the end, the client was indeed prosecuted.
Links (not the sausage kind): Wikipedia, U.S. Copyright Office FAQ
Posted By: Philip Matthews, Student at the Gonzaga School of Law