[KaVir]

Originally Posted by They haven't made a mistake. You're not looking carefully enough at the question part of the FAQ entry. You can not generally copyright a name.

I stated "Copyright does not protect names, titles, slogans, or short phrases". The FAQ states "Copyright does not protect names, titles, slogans, or short phrases". I'm not quite sure how I can read it any more clearly than that...

Originally Posted by That doesn't mean that a name/character can't BE PROTECTED by copyright, as Mason points out.

I never claimed that a character couldn't be protected by copyright law (because quite obviously it can). What I said is that a name cannot be protected. And it cannot.

Originally Posted by You could infringe with less than 10 words. Example: a story with protagonists named "Kirk" and "Spock."

That would not be a copyright violation. There is nothing stopping me from writing a childrens story about Kirk the dog and Spock the cat, and their adventures on a farm in the countryside.

Originally Posted by Star Trek characters may have been known to have said "Good morning" at some point, but that's not distinctive to Star Trek in any way. "Live long and prosper," on the other hand...

...comes up with 9,580 hits on a google search, and is not a copyright violation. Things like a document entitled "Help Your Pet Live Long and Prosper: Why a Natural Diet is Better" is hardly a copyright violation.

[Mason]

Originally Posted by (KaVir @ July 24 2003,14:16) Right - it's not the usage of the name, it's the usage of the creative work behind it.

The background and development of the character is a factor as to whether or not a name is eligible for copyright protection. Most names will not receive copyright protection, but some of them do.

[Mason]

Originally Posted by (KaVir @ July 24 2003,14:26) I never claimed that a character couldn't be protected by copyright law (because quite obviously it can).  What I said is that a name cannot be protected.  And it cannot. Originally Posted by You could infringe with less than 10 words.  Example: a story with protagonists named "Kirk" and "Spock." That would not be a copyright violation.  There is nothing stopping me from writing a childrens story about Kirk the dog and Spock the cat, and their adventures on a farm in the countryside. Originally Posted by Star Trek characters may have been known to have said "Good morning" at some point, but that's not distinctive to Star Trek in any way.  "Live long and prosper," on the other hand... ...comes up with 9,580 hits on a google search, and is not a copyright violation.  Things like a document entitled "Help Your Pet Live Long and Prosper: Why a Natural Diet is Better" is hardly a copyright violation.

Just because something is entitled to copyright protection does not mean mean that every instance that closely replicates it will be an infringement. The same thing applies with trademark law. (That is why two separate trademarks can have the same name (i.e. Delta Faucets and Delta Airlines)). Further, some of the instances you propose might fall under fair use exceptions.

Whether or not something qualifies for protection does not necessarily mean that every usage will result in infringement, and I think you are confusing the arguments.

[Stilton]

Me:

Originally Posted by You're not looking carefully enough at the question part of the FAQ entry. You can not generally copyright a name.

KaVir:

Originally Posted by I stated "Copyright does not protect names, titles, slogans, or short phrases". The FAQ states "Copyright does not protect names, titles, slogans, or short phrases". I'm not quite sure how I can read it any more clearly than that...

Well, for starters, you don't seem to have looked at the question part yet- the question asks how you would go about obtaining protection for a name, phrase, etc. The answer, when kept in context with the question, doesn't say what you're representing it to have said. Ok, you could quibble that they could phrase the answer better, but it's an FAQ, not a statute. The rest of us seem to have instantly grasped what it meant.

Originally Posted by I never claimed that a character couldn't be protected by copyright law (because quite obviously it can). What I said is that a name cannot be protected. And it cannot.

Mason's cites to the contrary?

Originally Posted by There is nothing stopping me from writing a childrens story about Kirk the dog and Spock the cat, and their adventures on a farm in the countryside.

Which, if true,doesn't prove that "Spock" and "Kirk" have no protection regarding some uses, as Mason points out.

Giving an example of a case in which protection may not be applicable doesn't disprove the existence of that protection.

Likewise your attempted rebuttal of my "live long and prosper" example.

Stilton

[KaVir]

Originally Posted by Mason wrote: The background and development of the character is a factor as to whether or not a name is eligible for copyright protection. Most names will not receive copyright protection, but some of them do.

Once again I reiterate, the names do not receive copyright protection. Ever. It is the characters that receive such protection.

Originally Posted by I write: I never claimed that a character couldn't be protected by copyright law (because quite obviously it can). What I said is that a name cannot be protected. And it cannot.

Originally Posted by Stilton responded: Mason's cites to the contrary?

In the first cite Mr Anderson's Rocky IV treatment was treated as an unauthorised derivative work under 103(a) because it was based on a character, which was considered to be a copyrightable work. In the second cite it was ruled that several Disney comic characters were protected by copyright.

I never claimed that a character couldn't be protected by copyright law (because quite obviously it can). What I said is that a name cannot be protected. And it cannot.

Originally Posted by I write: There is nothing stopping me from writing a childrens story about Kirk the dog and Spock the cat, and their adventures on a farm in the countryside.

Originally Posted by Stilton wrote: Which, if true,doesn't prove that "Spock" and "Kirk" have no protection regarding some uses, as Mason points out.

The protection extends to the characters, not the names. Names are not protected by copyright law. Names are protected by trademark law. I have stated this repeatedly. I have provided references to the Copyright Office website, in which it states "Names are not protected by copyright law". It's even listed as one of Brad Templeton's 10 Big Myths about Copyright. I really can't see what there is to argue about.

[Stilton]

KaVir:

Originally Posted by The protection extends to the characters, not the names. Names are not protected by copyright law. Names are protected by trademark law. I have stated this repeatedly.

Originally Posted by I really can't see what there is to argue about.

I have no problem with what you're saying now. But your first post in this thread was simply:

KaVir:

Originally Posted by Copyright does not protect names, titles, slogans, or short phrases.

The only reason I can imagine that you would have posted this is because you thought it was relevant to whether the ad we were discussing was an acceptable use of the material.

Specifically, it seemed that you were saying that using a name or phrase was necessarily acceptable because "Copyright does not protect..."

Is that not what you were intending to say? If so, has your position changed? If not, what was the original post in reply to and what were you attempting to point out?

Stilton

[KaVir]

Copyright protects a creative work.  However just because you use a specific name within that work doesn't mean that that name cannot be used elsewhere (unless there is a trademark).  Equally, just because someone uses a short phrase which is similar to one of yours, it doesn't mean that that is a copyright violation.

Originally Posted by I have no problem with what you're saying now.

I never changed my stance throughout this thread.  It was other people who implied that I was saying something else (aka "straw man"), specifically that I was claiming a character could not be copyrighted.  The point I have been making was purely in reference to the names themseves, and to short phrases.

Note that your above quote is exactly the same as this one here. Do you consider yourself to have violated this other poster's copyright? If not, why do you feel your case is different to that of the original poster?

[Stilton]

KaVir:

Originally Posted by I never changed my stance throughout this thread.

Then your first post is one of:
1) citing an FAQ as evidence that the ad is infringing
2) citing an FAQ as evidence that the ad is NOT infringing
3) something else.

Which is it? (If (3), please explain)

It certainly seemed to me that (2) is what you were attempting to do, and I believe that Mason and I have provided sufficient guidance on this point.

Originally Posted by Note that your above quote is exactly the same as this one here. Do you consider yourself to have violated this other poster's copyright? If not, why do you feel your case is different to that of the original poster?

(his URL refers to a usenet post using the phrase "I have no problem with what you're saying now.")

I'd like to think that you can see the difference between "May the force be with you," an almost universally recognized reference to Star Wars that brings to mind an epic story by it's utterance, and a sequence of words like "I have no problem with what you're saying now," which has no significance beyond its literal meaning for the vast majority of people who read it.


Stilton

[KaVir]

Originally Posted by It certainly seemed to me that (2) is what you were attempting to do, and I believe that Mason and I have provided sufficient guidance on this point.

Yes, 2 is what I am attempting to do, and I have already explained why Mason's post addressed something completely different (aka "straw man", references available upon request). Your points didn't really address anything at all as far as I could see.

Originally Posted by I'd like to think that you can see the difference between "May the force be with you," an almost universally recognized reference to Star Wars that brings to mind an epic story by it's utterance, and a sequence of words like "I have no problem with what you're saying now," which has no significance beyond its literal meaning for the vast majority of people who read it.

As far as copyright is concerned, I'd like to think that you'd realise there is absolutely no difference what so ever. The question still stands.

[Stilton]

KaVir:

Originally Posted by Yes, 2 is what I am attempting to do, and I have already explained why Mason's post addressed something completely different (aka "straw man", references available upon request). Your points didn't really address anything at all as far as I could see.

For a recent demonstration of short phrase protection (if you trust the 9th Circuit in the US ) see
http://laws.lp.findlaw.com/getcase/9...836242&exact=1

What was primarily at issue was a few phrases buried in hundreds of pages of investment manual.

There are a couple of other cites at
http://legalminds.lp.findlaw.com/lis.../frm12983.html

I'll ignore the insult beyond noting it.

Originally Posted by As far as copyright is concerned, I'd like to think that you'd realise there is absolutely no difference what so ever. The question still stands.

Me, I tend to believe the guys in the black robes. I don't always agree with them, but they've got very creative ways of getting in the last word if you try to argue with them

Stilton

[KaVir]

Better, better, but your example is not only unusual, it also deals with a case whereby the infringer copied key parts of the copyrighted work (ie creative concepts, in the same way as a character from a novel can be copyrighted beyond the actual words that describe him or her). The same could certainly not be said about the quote which sparked this thread, which would quite clearly be considered de minimis.

Note that copying a sentence and a half from a book of 142 pages has been considered "de minimis", as has copying 30 characters out of 50 pages of source code. (ref)

See also Palmer v. Braun (4/9/2002, No. 01-14511) : "Braun copied fifteen sentences from the Avatar Course materials. The district court found that these fifteen sentences represent de minimis infringement"

Also worth noting is Aberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972) which held that the phrase "most personal sort of deodorant" is not copyrightable.

[Stilton]

KaVir:

Originally Posted by Better, better, but your example is not only unusual,

One case is all I need to disprove your claim that short sequences of words cannot be protected by copyright.

As soon as you say (if you do), "Well, maybe SOME phrases or names are so distinctive that they can be protected when used in certain ways," you're agreeing with me and recanting your continued assertions that brief sequences of words cannot ever be so protected.

Originally Posted by it also deals with a case whereby the infringer copied key parts of the copyrighted work (ie creative concepts,

It wasn't the concepts (ie, ideas, as your own cites also make clear)- it was the way of expressing them that was held to be protected. Particularly, as little as two words: "meter drop."

Originally Posted by The same could certainly not be said about the quote which sparked this thread, which would quite clearly be considered de minimis.

I disagree- what was used is one of the most distinct and recognizable pieces of the work.  Further, it was specifically chosen BECAUSE it is so greatly identified with Tolkien in the minds of the intended audience.  This is solidly in the territory Mason and I covered with our earlier cites.

If you want to say, "Well, I don't think that this particular use infringes," then we'll have to (hopefully amicably) disagree.  If you continue to say that such short excerpts can NEVER have any protection merely because they're short, I will continue to contend that you are wrong.

Originally Posted by Note that copying a sentence and a half from a book of 142 pages has been considered "de minimis", as has copying 30 characters out of 50 pages of source code. (ref)

specifically

Originally Posted by Braun copied fifteen sentences from the Avatar Course materials. The district court found that these fifteen sentences represent de minimis infringement

and

Originally Posted by Also worth noting is Aberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972) which held that the phrase "most personal sort of deodorant" is not copyrightable.

The courts you cite did not say that NO excerpt of that that length can be protected by copyright, only that these two examples were not in this particular context protected by copyright.

This is not evidence that very brief sequences of words are never protected by copyright, only evidence that not EVERY brief sequence of words can be protected by copyright.  I have not made any claim that these cases disprove.

Stilton

[welcor]

Originally Posted by Note that copying a sentence and a half from a book of 142 pages has been considered "de minimis"

The full reference looks like this:

Originally Posted by Use in novel of one seventh of page copied from 142 page copyrighted history is fair use, since copied portion represents neither substantial nor material part of history, was insignificant in value and extent of copyrighted material, and did not prejudice sale, diminish profits, or supersede objects of original work; copied material had no effect on sale of novel and did not relate to theme of history; copyright proprietor could not be damaged by publication of novel; action is de minimis. Toulmin v Rike-Kumler Co. (1962, SD Ohio) 137 USPQ 533, affd (1963, CA6 Ohio) 316 F2d 232, 137 USPQ 499, cert den (1963) 375 US 825, 11 L Ed 2d 58, 84 S Ct 66, 139 USPQ 566.

and was found here.

I have to say, having skimmed through the other info on the page, that the use of the particular sentence in question would be if not de minimis then at least fair use. The sentence in the original post fulfills the same criteria:
1. copied portion represents neither substantial nor material part of history
2. is insignificant in value and extent of copyrighted material
3. does not prejudice sale, diminish profits, or supersede objects of original work;
4. copied material has no effect on sale of novel
5. does not relate to theme of history(in copyrighted material)
6. copyright proprietor can not be damaged by use of the sentence.

In short: I agree with KaVir - this is de minimis - or failing that, fair use.

[KaVir]

Originally Posted by One case is all I need to disprove your claim that short sequences of words cannot be protected by copyright. As soon as you say (if you do), "Well, maybe SOME phrases or names are so distinctive that they can be protected when used in certain ways," you're agreeing with me and recanting your continued assertions that brief sequences of words cannot ever be so protected.

As I've already explained, the case in question deals with a concept (in much the same way as a character in a novel can be protected by copyright law) rather than just the phrase itself.  Indeed your link specifically mentions that it was "Cook's complete expressions in conveying the meaning of "meter drop" and "rolling stock"" which were deemed creative and thus protected by copyright, and that "Where the copied protected portions are only a small part of the larger work, as is the case here, that material must be qualitatively important to either plaintiff's or defendant's work".

Originally Posted by It wasn't the concepts (ie, ideas, as your own cites also make clear)- it was the way of expressing them that was held to be protected. Particularly, as little as two words: "meter drop."

It was the meaning behind them that was copyrighted.  If I had written a short story about "rolling stocks" which referred to the frame holding a ship which had rolled down a hill, it would obviously not have been an infringement - any more than writing a story about Spock the duck who was living on a farm.  In that respect, it is no different to the example you attempted to use previously of a character name falling under copyright.  In both cases it was not the name of the character/concept, but the creativity behind it, that falls under copyright protection.

Originally Posted by I disagree- what was used is one of the most distinct and recognizable pieces of the work.

I disagree.  It was just one sentence within the work, and was hardly qualitatively important to the work.

Originally Posted by Further, it was specifically chosen BECAUSE it is so greatly identified with Tolkien in the minds of the intended audience.

Did you verify this with the mud owner, or did you just assume it?

Originally Posted by This is solidly in the territory Mason and I covered with our earlier cites.

Yes - solidly in the area of having nothing to do with the name itself, but with the creative work behind it.

[Stilton]

Welcor:

Originally Posted by I have to say, having skimmed through the other info on the page, that the use of the particular sentence in question would be if not de minimis then at least fair use.

de minimis is tricky, and something that reasonable people may disagree on.

If it's not de minimis, then it has to fall into one of the categories of fair use.  Which one do you believe is applicable (or more than one)?

Please note that there are also cases where small quantities have been found to be infringing (300 words/200,000 in one example findable through my other links)

Context is strongly dependent here: History or a technical manual explaining a process can be very close without infringing.  Creative works sometimes have wider scope (there are only so many ways to say "General Washington crossed the Delaware" or "Tighten the engine bolts in counterclockwise order" while there are many more possibilities for interactions of characters in a novel).

KaVir:

Originally Posted by As I've already explained, the case in question deals with a concept (in much the same way as a character in a novel can be protected by copyright law) rather than just the phrase itself.

Whatever the reason, certain uses of certain short sequences of words (possibly even a single word in the case of a character name in certain contexts) may not be allowed in certain contexts.

This seems to be directly contrary to your (initial? continued?) position that the phrase in the ad cannot be infringing simply because of its short length.  If the phrase sufficiently invokes the protected character/expression of an idea/whatever, it can't be used in certain ways.

As you said earlier, you may be able to write a children's story about a cat and dog named Spock and Kirk.  But try to market a pet food with a starry background, a space ship, and the phrase "Spock and Kirk's favorite" pictured on the front and you might find yourself in lawsuit territory.

Practically speaking, precisely what is protected in the above description is not important to our present debate: whether the use of a certain distinctive phrase can infringe someone's copyright.

The answer, which you seem to be agreeing with (while emphasizing that it's not "just" the phrase that's protected), is yes.

Originally Posted by