Abattoir MUD advertisement:
"Not with ten thousand men could you survive the Abattoir. It is folly."

A line from LOTR: The Fellowship of the Ring, both book and movie:
Boromir : One does not simply walk into Mordor. It's black gates are guarded by more than just Orcs. There is evil there that does not sleep, and the Great Eye is ever-watchful. It is a barren wasteland, riddled with fire and ash and dust. The very air you breathe is a poisonous fume. Not with ten thousand men could you do this. It is folly!

Anyways, I thought it was funny at first. Using a line from a famous book and movie to bring people to their MUD, then I thought maybe illegal, but then I thought of other marketing schticts used to advertise... like "Got MUD?" Instead of "Got Milk?"

anyways...

IANAL, but I doubt this is illegal. It might be tacky and trite, but not illegal.

It's tacky, it's trite, and I came up with the idea. It's also quite clearly fair use, given the following common criteria:

1. The purpose and character of the use - it's being used in parody, which is protected under US, UK, and maybe international law. It is clearly paraphrased to make this clear. See also:
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. - The proportion of text used in relation to The Fellowship Of The Ring (screenplay, book, or movie) is minimal.
4. The effect of the use on the potential market for, or value of, the copyrighted work. - Nobody is going to be having fun reading our banner instead of watching FotR again, thus losing New Line millions of dollars.

Also taken into consideration would be the fact that we are a non-profit entity (Diku license).

I wish people would do a little more research on laws before accusing everything that is the tiniest bit derivative of being 'illegal'.

That would only be taken into account when assessing damages, not whether or not what you did was protected by fair use.

Not entirely true. Copying done for a profit has obvious implications for the 4th clause above, as well as the 1st (the full version being "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"... my mud clearly falls somewhere in between. I also quote from that "If it is obvious that the user is attempting to make a profit from the use, then it suggests that it is more likely that the use is infringement."

Incorrect. Educational use is an explicitly defined special case. As Wikipedia points out, profitable use suggests that infringement is more likely because if that use is profitable, it is highly likely (if not guaranteed) that the owner of the copyright in question could have made those profits him/herself. Non-profit non-educational use, however, is provided no special protection whatsoever.

And I never intended to imply that it did, only that it is a factor in how a judge may decide such a case if previous cases didn't dictate the result.

Again, it does not factor in at all. Non-profit use is not an affirmative defense against a charge of copyright infringement. For-profit use is more likely to be infringing, but whether or not a given use is for profit or not has no bearing on whether or not a given action is infringing. In other words, there is a correlation between for-profit use and a higher likelihood of copyright infringement, but the relationship is not causal.

You are disagreeing with several online sources I found today, and assuming I said things that I didn't. (eg. I never claimed it was an 'affirmative defence', merely that it would be a factor in a judge's appraisal of a different defence, as clearly stated in guidelines 1 and 4.) However I have no wish to continue to debate this single point as it's not really relevant in my case.

Moved to the Legal Issues forum due to topic change.

Not with 10,000 lawyers could you make a legal case out of that. It is folly. It is frivolous and it isn't the law.

If people would read what I first wrote, I said:
"At first I thought Illegal, then thought about many other marketing schticts that do similar things etc." I was saying it was funny at first, then maybe I thought illegal, then I thought no. So stop thinking I'm like accusing you or whatever.

Parody... hmm:
This doesn't really provide a comic effect, or ridicule it. Because the state of the advertisement doesn't tell what the Abattoir is, or who is even saying it. If the Abattoir was some sort of raunchy prostitute and the person saying it was a drunk sailor to his friend while sizing up the woman in the bar, then yes. It might be a parody. But the way the advertisement is portrayed, its not a parody. So scratch that excuse.

No one knows who or what the Abattoir is if they are reading the advertisment for the first time with no clue about the MUD. I would think it some dungeon, or evil land. Like the place it was being substituted for in the original line.

Anyways, its not really comidic, not parodying anything because no one knows the situation that the statement is taking place in because the advertisement is too short to display such.

All in all it seems to be a cheesy way to draw people in using a line from a current movie at the time.

Oh, and another thing. If you realize this started in: Mud Humor.
Because my intial thinking was: How lamely funny.

I didn't put it in the legal discussion because it wasn't like: Someone sue these guys please!

Anyways, but the point was entirely missed I guess.

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

KaVir:
Correct. But, the copyright isn't protecting the phrase, it's protecting the book. To use any portion of the book, including short quotes, you have to argue that you're licensed to do so or that it's fair use. I don't believe there's a "small excerpt for any use you want" exemption, and this is clearly not review, commentary, or parody. It's an ad. IANAL, but I don't think it's permissible to lift memorable phrases from creative works and use them in advertising.

Is the ad attempting to leverage off of the public recognition of Tolkien's work? Clearly, yes. Is that one of the primary danger signs for thinking about using something that you are not completely responsible for creating? Yes.

Is it actionable? Who knows. Straight copyright might not even be the only claim: there are plenty of laws against obnoxious advertising practices anf general tort laws.

Stilton

What you're saying is the definition of an affirmative defense: An explanation for a defendant's actions that excuses or justifies his behavior.

Claiming protection under the fair use provisions in copyright law is an affirmative defense. Claiming that a work is a parody of the copyrighted material in question is valid justification for a fair use affirmative defense. Claiming that because your use is not profitable it is fair use is an attempt to use that as an affirmative defense, whether you are aware of it or not, but there is no legal basis for such, therefore it is entirely invalid.

How can you claim in your first post that "I thought it was funny at first" and then now claim "This doesn't really provide a comic effect"?

And just because someone doesn't know what the Abattoir is (which would be pretty unlikely, given the context in which our ads appear), doesn't make it any less of a parody.

Adverts have used parody for many years, and will continue to do so. I'm sure that if being an advertisement lost you the parody defence, then someone would have sued someone else long ago and put an end to it. In fact, they tried, and failed.

As for "obnoxious advertising practices"... what? I think you're being ridiculous here.

Let me spell this out, cos I'm not getting through - I am not claiming that because my use is not profitable that it is fair use. I am not that dumb. I am claiming - asserting, even - that judges take it into account when they decide whether the use is fair or not. As far as I can tell, all I have to do is please 'fair use' as my affirmative defense. Then, the guidelines - and special cases such as parody - come into play.

Please, go to:
Read the bit that says quite clearly that "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

If you still disagree with that, please take it up with your local Representative or whatever, because that is under the heading "Copyright Law of the United States of America" on a government web site.

I have read it and have had it explained to me by several IP attorneys at seminars. Whether or not a use is commercial only comes into play with respect to determining fair use if you have a valid affirmative defense based on educational use. E.g., it is fair use for a public school to make multiple copies of a portion of a literary work in order to aid in classroom instruction. It is generally not fair use for a profitable private educational institution to do so. Also note that there is an explicit difference between educational use and scholarly use. It is fair use to quote portions of a relevant work in a technical trade journal, for instance, even if said journal is profitable (critical difference: instructing individuals in a field vs. advancing the state of the art of the field). WIth respect to a fair use affirmative defense based on parody, whether or not the use is commercial is entirely irrelevant.

Your banner is obviously not educational. Whether or not you profit from it is irrelevant with respect to determining fair use.

Wrong. You must specify the nature of your plea and provide evidence of and argue its validity.

As an aside, while I believe that your banner is a fair use (due to the text in question comprising an insignificant portion of Tolkien's work), it is also doubtful that it is a parody. The legal definition of parody is, roughly, a humorous form of social commentary that is achieved by contrasting a well-known original work and a parodic twin. The Daily Show's use of real news clips is a good example of parody, as are songs by Wierd Al Yankovic (e.g., the infamous Amish Paradise) and various Mel Brooks films. The primary purpose of your use of the phrase in your banner is, arguably, to use the association between the phrase and Tolkien's work to generate interest in your MUD, and not to provide a humorous social commentary of Tolkien's work, likely invalidating an affirmative defense based on parody.

Kylotan:
I never claimed otherwise. It does have to actually be parody, though. (and even bypassing copyright claims wouldn't necessarily get you around all of the legal obstacles.

It's clear that you're using someone else's IP to boost your own product. That may be ok if it's actually parody, but as far as I can see it isn't.

An abattoir is basically a killing ground (slaughterhouse, often used figuratively). From your capitalization of the word, I assume you've used it as the proper name of a geographical location. You're using the phrase in the same way Tolkien did, not mocking it.

Stilton

Not entirely true. As a general rule, copyright protection does not extend to names, titles or short phrases. However, there are instances wherein they are so defined as to lead to infringement. "Star Wars" and "Luke Skywalker" are both protected by copyright (and trademark law, as well). Further, "Use the force, Luke" would likely be protected as well. The test isn't whether it is a name, but whether the character, title or phrase is so highly developed as to tell a story by it's mere mention.

I wrote:

Mason wrote:



What Does Copyright Protect?

5. How do I copyright a name, title, slogan or logo?

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

I believe you are thinking of trademarks.

KaVir:
(responding to Mason, and supplying a link to an FAQ)
No, he's correct.  Your cite is literally true as a response to the question "I thought of this great character name,  'Xyzzy'! Can I copyright that?"  Of course not, as the FAQ says, but the question as worded in the FAQ is not applicable to this situation.

Now, if you went to the trouble of writing a popular trilogy about Xyzzy, you may well have some rights over the use of the name in certain ways.

Other FAQ's such as

are clearer on this topic.

You can't usually get protection for a name or phrase, but that name or phrase might acquire protection as part of a work which is significant enough to copyright.

Clear now?

Stilton

He claimed that the names "Star Wars" and "Luke Skywalker" are protected by copyright law.  The copyright.gov website states otherwise.  If you think the US Copyright Office has made a mistake, then obviously you should contact them asap.

There is no "usually" about it.  Copyright law does not protect names or phrases.  Those are instead covered by trademark law, as I already pointed out.

Yes, but it's the creative work as a whole which is copyrighted.  Copying even a small section of that creative work might well result in a copyright violation, but to claim that something is a copyright violation because it has 10 words in common with another creative work is just absurd - if that were the case, it would make it practically impossible to ever create anything new without first inventing your own language.

Trademark status does offer protection for names such as Star Wars and Luke Skywalker.  However, both names are also protected by copyright.  The test isn't whether it is merely a name, but whether the name constitutes a character that "is delineated with enough specificity so as to garner copyright protection."  Anderson v. Stallone 11 U.S.P.Q.2d 1161 ( C.D.Cal. 1989).  See also, Warner Bros. Pictures v. Columbia Broadcasting system 216 F.2d 954 (9th Cir. 1954), cert denied, 348 U.S. 971 (1955).

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

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

It MIGHT be possible to do, but you'd have a very uphill fight if you claimed that you were not attempting to leverage off of copyrighted Star Trek IP.

It's the distinctive parts of the work that are protected, not every combination of words that happens to appear in it.

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...

Stilton

No, they are not. I could (for example) write a story about a little winged goblin called "Luke Skywalker" who lived in a castle with a dragon and a fire-breathing goat, and there would be no copyright violation. I could also (for example) create a strategic defense initiative organisation called "Star Wars" and once again their would be no copyright violation.

Right - it's not the usage of the name, it's the usage of the creative work behind it.

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...

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.

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.

...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.

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.

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.

Me:
KaVir:
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.

Mason's cites to the contrary?

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

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

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.

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.

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

KaVir:
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

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.

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 . 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?

KaVir:
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.

(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

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.

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.

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. ()

See also : "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.

KaVir:
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.

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."

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.

specifically
and
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

The full reference looks like this:
and was found .

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.

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".

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.

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

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

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

Welcor:
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:
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.

Which is the same misdirection as before.  You started out saying that this particular use of that phrase in that ad could not possibly infringe on a copyright BECAUSE IT WAS SHORT.

Now you're saying that a phrase can't be protected in and of itself as a sequence of words, but only as a result of the meaning it conveys in a context.  This is true, but irrelevant to the issue we're debating: whether any particular use of a short phrase is capable of infringing copyright.

Clearly, it is possible for a short sequence of words to cause a copyright infringement in the general case.  This ad? I happen to think so, you and Welcor don't.

I read the owner's posts* in this thread.  He said that it was a parody.  Thus, he clearly intended that the phrase's origin be recognized.  I don't happen to agree that it's a parody, but the fact that he claimed it was provides evidence that the use was intentionally invoking Tolkien's IP in the minds of the audience.

Stilton

*Ok, Ok, someone CLAIMING to be in a position to represent the intent of the ad.  I'm inclined to think that he's genuine lacking evidence ot the contrary.

Heh, this is getting funny. Stilton, that last sentence of yours didn't make sense... are you suggesting it's not actually my ad? Or that I lack some other kind of evidence?

Yes, the phrase was deliberately chosen, for humour value. Although I have seen one good argument above to suggest that it isn't protected as parody, I have seen case history that suggests that it is, and that the parodic intent need not be the primary purpose of the work. This, in addition to the aspects that Welcor mentioned relating to the factors to be taken into account, leads me to believe the usage is permitted.

Kylotan:
No, since the thread was getting nitpicky, I was acknowledging that _I_ have no evidence that the person who placed the ad was the person posting in this thread, or that he/you have anything to do with the people who placed it or authority to speak for them.

I'm not suggesting that _YOU_ have to prove anything :)

I respectfully disagree with your position that your ad can be construed as parody, for the reason I pointed out: the use seems the same, not a comedic distortion.

Topmudsites has run other ads that I think of as sketchy (like the ripoff of the Mastercard ads "X... $AX, Y....$AY, Z....Priceless") and there have been ads here and elsewhere that other people have thought sketchy that I didn't ("The #1 mud!"). As I've said, I'm perfectly willing to accept differences of opinion on "does THIS infringe?", vs "Is it possible for ANY (phrase, use of a character name, etc) to infringe?", which has a quite clear answer ("yes").

Your ad meeds many of the criteria for being benign (like it being hard to imagine the ad impairing the sales of LOTR), but isn't so safe on certain other grounds (it's an intentionally selected distinctive phrase intended to be recognized).

Stilton

The point in question:
The issue here is, in other words, whether this is infringement:
"Not with ten thousand men could you .... It is folly!"

I - obviously - can't see how it can be, as you see on my previous reply. The criteria set up by the US federal court through their rulings.

Stilton:
Which is why we must look at previous decisions by the courts of law to get an idea of the laws' interpretation.

Using 10 words out of LOTR which contains about half a million words is in my opinion a clear example of de minimis.
Also, since you asked: In my previous reply I stated that it was fair use due to:
1. copied portion represents neither substantial nor material part of history:
 If the sentence had not been in LOTR, LOTR wouldn't have been a less successful (or creative) piece of literature.
2. is insignificant in value and extent of copyrighted material
10 words/500.000 speaks for itself.
3. does not prejudice sale, diminish profits, or supersede objects of original work
 Actually, after a thought, this might make people want to get the book/movie. It's not like you can read this line, and then don't have to read LOTR.
4. copied material has no effect on sale of novel
See 3.
5. does not relate to theme of history(in copyrighted material)
 The sentence "Not with ten thousand men could you do this. It is folly!" doesn't include reference to any plot, character, idea or concept in LOTR. Nor does the copied material.
6. copyright proprietor can not be damaged by use of the sentence.
 Noone is going to be upset at Tolkien for the use of the copied text. It's not like it's a porn site that's using it.

Yes, 300 words, I've found that reference as well. That's 30 times as much as what we're discussing here. And taken from a substantially shorter text.
The sentence in this case - "Not with ten thousand men could you .... It is folly!" - does not constitute a significant part of the work (qulitatively nor quantitatively), so the court decisions are clear: It is de minimis.

Welcor:
And what we're discussing here is 5 times as much as the two words in the case I cited :)

I agree with much of your determination on the individual points. I think that the phrase is distinctive enough to be protected in the context it's used here, though it doesn't identify characters or much plot by the literal words.

I also dispute the idea that you can predict de minimis results with any accuracy by looking at most precedents. If you have to ask, it seems like you might well be found to have infringed.

I wonder:
Do you think it would be an acceptable use for an ice cream parlor to market their biggest tub-o-goodness with the slogan "Not with ten thousand men could you survive the Apocalypsundae. It is folly!"?

If it is acceptable, why don't we see more marketing by big corporations using cultural icons/quotes from Tolkien, Star Wars, etc.

I think you and I have reached the point of respectful disagreement. KaVir might still have his sword out, though ;)

Stilton

I've taken the time to read your reference, and it seems to me that the fair use in the case falls due to:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The use of "meter drop" and "rollong stock" is used in a commercial (mainly for-profit) way.

2) the nature of the copyrighted work
- The nature of the work is not considered (both are non-fictional).

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The phrases were (as testified by the copyright owner) "an important part of the work" and "an important part of {the copyright holders} life" and are thus deemed "a qualitatively substantial part of the work". (I agree on this one - after all it's one of the reasons people buy the book.)

4) the effect of the use upon the potential market for or value of the copyrighted work.
- The use of the copyrighted material (in a course for stockmarketeers) serves the same market as the original work. Thus, the court decides that the use of the copyrighted material affects the market for the original work.

My own note: I don't undertsand why they didn't buy a set of books for the seminar instead...

This case is so different from the point we're discussing, that I'm surprised you'd use it as a reference. Especially to prove that the use in question is not fair use.