Science-fiction author and futurist Arthur C. Clarke famously formulated three laws of prediction, the first of which posits: “When a distinguished but elderly scientist states that something is possible, he is almost certainly right. When he states that something is impossible, he is very probably wrong.” The same could be said of copyright law.
If you believe categorically that something is not copyrightable, you may well be wrong. You have a much better shot at being right if you conclude that this something possibly could be copyrightable, because the answer to the question “Is it subject to copyright protection?” is, more often than not, “It depends.” In other words, the law of copyright is weird, wacky and wonderful.
Just ask the members of the band Green Day. Recently, graphic artist Dereck Seltzer sued the band for copyright and trademark infringement, claiming the band repeatedly used in concerts and promotional materials, without his permission, a frightening, close up image of a face he created years ago. So with that lawsuit in mind, let’s play a few rounds of “Can U Copyright It?” The answer may not be as obvious as you might first think.
A face only a mother, and a copyright owner, could love. Can you copyright a face? What about a screaming, fang-toothed face? The answer may not offer much comfort to either Green Day or Dereck Seltzer: it depends. Seltzer’s graphic image of the face — entitled Scream Icon— appears to be unique, identifiable and original. Is it copyrightable? Original artistic works (e.g. pictorial, graphic and sculptural works) are clearly protected by copyright law. Green Day’s lawyer insists that any copyright infringement was unintentional. It remains to be seen whether the band will be called to “face” the music here. (Can you copyright a bad pun…? A topic for another day.)
Now what if a band used in concert, without permission, a close-up photograph of my face, snarling and sporting wax fangs, taken by Photographer X? (Just a typical Saturday night…). Well, photographs of real people are as copyrightable as any other picture, assuming the photo exhibits a sufficient level of originality to be protected under the Copyright Act. The prevailing view is that almost any photograph can include the necessary originality to support copyright, if only by virtue of the photographer’s personal choice of subject matter, angle, lighting, shutter speed, lens, etc. But the copyright in the vampiresque photo of me belongs to Photographer X, and not to me. Setting aside possible “work for hire” issues, in this instance, I can’t copyright my face, unique, artistic and expressive as it may be. I do, however, have a property right in my identity and human persona, and would likely have a claim for infringement of my right of publicity for the unauthorized use of my face.
What’s in a name? Not much, according to the United States copyright office. As any player worth her salt knows well, the attempted use of a proper name will get you ZERO points in Scrabble. But can you copyright your name? Sadly for George Costanza and his fictional offspring “Seven” on Seinfeld, on this one the answer is a definitive “No.” U.S. copyright protection does not extend to names, no matter how distinctive, clever or, let’s face it, bizarre that name might be. Thus, you can’t copyright the name of a game you have invented (say, for example, “Can U Copyright It?”) nor the name of the 80’s cover band that you and your shoulder-length bleached blonde hair are fronting. So for those of you who’ve paid handsomely to have a star in some distant galaxy named after a loved one, you can’t really “officially” register a star name, at least not under copyright law. If it is any comfort, the book compiled by the star registry who accepted your money probably is subject to copyright protection. The individual “star names” included therein, however, are not. Names may be subject to trademark protection if eligible and you are so inclined.
Short and sweet. But protected? Short phrases, catch-phrases and slogans are not protected under the U.S. Copyright Act either. The Copyright Office will not register even a creative, novel or distinctive short phrase. Thus, my seven year old appears free to chant “I know you are but what am I” with impunity (save for a timeout or two). But, as are many things in copyright, the issue can be somewhat nuanced.
Some cases have held that short expressions could be copyrightable if they embodied an original idea and occurred in the context of a larger copyrightable work. But what if the phrase itself comprises the whole work? Will copyright protect, for example, a seventeen syllable poem such as a haiku? A pithy original joke or one-liner (e.g. Henny Youngman’s classic four word gag “Take my wife… please”)? The answer here is likely yes. In the late 1970s, a court held that a seventeen word epigram created by renowned epigrammatist Ashleigh Brilliant was copyrightable. And in the case Heim v. Universal Pictures Co., Inc., Judge Jerome Frank opined that brief statements such as “Euclid alone has looked on Beauty bare” and “Twas brillig and the slithy toves,” though small quantitatively, nonetheless are so original as to qualify for copyright protection.
And what of the poor-man’s haiku: the 140-character or less Twitter Tweet? Are Tweets copyright-protected? Most legal experts conclude that the answer should be “it depends.” From what I’ve seen of the Twitter world, the content of most tweets (“content” being a generous term here) lack sufficient originality to pass the copyrightability test. Moreover, facts are not protected by copyright, and facts (boring, useless facts) are what 90% of tweets appear to be made of (“I just ate a delicious sandwich!”). Although I can’t imagine why they would choose to do so, if someone read your posts and wanted to write about what you had for lunch today, how many times you burped this morning or whether it is sunny in Cleveland, copyright law would permit them to do so.
But it is possible that a clever tweet might contain enough original expression to qualify for copyright protection. Whether or not a tweet is subject to copyright protection depends on whether the material you posted through Twitter was copyrightable in the first instance. Copyright law cannot prevent someone from writing about the same facts you do, but if there is sufficient creativity and originality in the way you express these facts, there may be some protection. If you tweeted a witty and original haiku about burping, you might have a claim for copyright infringement if someone copied it. It all depends. But would you actually spend the time and energy required to sue to enforce such protection? That, my friend, is a question only you can answer. Mr. Clarke’s Second Law of Prediction may offer you some guidance: “The only way of discovering the limits of the possible is to venture a little way past them into the impossible.”