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Product Description & Label Copyrightability

Many companies suffer under the delusion that their product descriptions are protected by copyright and they openly declare their intentions to prevent others from using those product descriptions. What these misguided souls fail to comprehend is that copyright does not protect ordinary factual statements, short statements, or titles, among others. These companies managers, none of whom appear to be smarter than a rice crispy, want to believe that they have the authority to stomp on the rights of sellers so they do not go beyond a cursory examination, if any, of the law.

And there is a difference between "being copyrighted" as insanely declared by the US Congress and having copyright protection which means it was registered with the copyright office. Even registration is not a guarantee of protection since 50% of copyrights are declared invalid by the federal courts upon trial.

Copyrightability is assumed by those who desire it. Generally, product descriptions are not copyrightable because to allow phrases to have copyright protection would remove those phrases from public use. If product descriptions are informative and relate to the characteristics of the product then copyright protection is denied.

Copyright law only protects original and creative "expression," and it denies protection to facts, ideas, and the effort involved in collecting and presenting them. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45 (1991); 17 U.S.C. 102 (subject matter of copyright: in general). The statutory exclusion of facts and ideas extends to ordinary ways of stating them. Gates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823 (10th Cir. 1983) (ordinary factual expression excluded from protection); Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) ("Ordinary phrases are not entitled to copyright protection."); Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir. 1987) (An "ordinary phrase" lacks the "minimum level of creativity" and is not protectable.).

Moreover, "short phrases" are excluded from copyright as a matter of law. 37 C.F.R. 202.1(a); CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1520 n.21 (1st Cir. 1996) (collecting authority). What is "short" depends somewhat on context -- even paragraphs of news or similar fact-intensive writing are excluded. Nihon Keizai Shimbum, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 71 (2d Cir. 1999) (news paragraph not protectable); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 710 (7th Cir. 1972) (paragraph describing product not protectable).

The Second Circuit in Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959), a copyright was sought on standard instructions on "how to serve" a cake. In rejecting that claim, the Second Circuit quoted the above regulation and described it as a "fair summary of the law." Ibid. Accord, e.g., Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (applying Sara Lee, holding "most personal sort of deodorant" an "ordinary phrase" lacking "appreciable amount of original text" and therefore not protected by copyright); CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1519 (1st Cir. 1996) ("It is axiomatic that copyright law denies protection to 'fragmentary words and phrases' and to 'forms of expression dictated solely at functional considerations' on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection.") (holding unprotectable "if you're still 'on the clock' at quitting time" and "clock in and make $50 an hour"); Murray Hill Publ'ns, Inc. v. ABC Communications, Inc., 264 F.3d 622, 633 (6th Cir. 2001) (holding unprotectable "Good morning, Detroit. This is J.P. on JR in the A.M. Have a swell day.").

In Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 535 (6th Cir. 2004), the court stated, "Phrases that are standard, stock" or "dictated by practical realities" or "tradition and settled expectation" are not protected.

To the contrary, with respect to fact-intensive writing, courts regularly have held that paragraphs of factual material still are too short for protection. Alberto-Culver, 466 F.2d at 710 (collecting authority); Meredith Corp., 88 F.3d at 480-81 (individual recipes not protected, though entire compilation might be). For example, the following product description lacked sufficient creativity:

FDS is the most personal sort of deodorant. This unique spray is made expressly for the external vaginal area. FDS protection is dry, refreshing and gentle to delicate tissues. Use FDS regularly to remove any fear of odor.

Alberto-Culver, 466 F.2d at 710 & n.2. The court did not question that the writing was skillful and managed to convey delicate and important information without offense. But the short factual paragraph still lacked enough creativity to justify copyright protection.

Similarly, the following paragraph from a movie script was not protected: "Good morning, Detroit. This is J.P on JR in the A.M. Have a swell day." Murray Hill Publ'ns. Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 627 (6th Cir. 2001). In addition to its brevity, this paragraph lacked creative expression because it was "dictated to some degree by the functional considerations inherent in conveying the desired information about McCarthy's morning show, i.e., whose morning show, what radio station, and what time." Id. at 632-33; see Lexmark, 387 F.3d at 535-36 (language dictated by "practical realities" not protected); Meredith Corp., 88 F.3d at 480 (recipe directions guided by functional considerations).

As works become shorter, it is more difficult to satisfy the creativity and originality threshold. 1 Goldstein on Copyright 2.7.3 ("The shorter a phrase is, the less likely it is to be original."); 1 Nimmer on Copyright 2.01[B] (There is a "reciprocal relationship" between length and the required "degree of creativity."). Indeed, as a matter of law, "short phrases" cannot offer sufficient creativity to merit copyright protection. 37 C.F.R. 202.1 (exclusion from copyright registration); CMM Cable Rep., 97 F.3d at 1520 n.21 (section 202.1 fairly states copyright law).

In Custom Dynamics v Radiantz LED Lighting 535 F. Supp. 2d 542 (E.D. NCar W.D. 2008), the court commented in length about product pictures and product descriptions.

If Custom is claiming a copyright in the ability to show product-description photographs and technical details of aftermarket motorcycle lights in general, Custom's claim is weak because it is essentially an attempt to copyright an idea. "Although copyright protects against more than literal' copying . . . it does not afford an exclusive right to ideas. . . ." Robert A. Gorman, Copyright Law 24 (2d ed.2006).

From Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959):

"Not every commercial label is copyrightable; it must contain `an appreciable amount of original text or pictorial material.' `Brand names, trade names, slogans, and other short phrases or expressions cannot be copyrighted, even if they are distinctively arranged or printed.' The Copyright Office does not regard as sufficient to warrant copyright registration `familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring, and mere listings of ingredients or contents.'"

and this:

"Similarly, the textual part of a label generally requires different treatment than the pictorial aspects of the label. Where the text is merely descriptive matter that does not aid or augment the pictorial illustration, it is not subject to copyright.

Bobrecker v. Denebeim, 28 F.Supp. 383, 384 (W. D.Mo.1939).

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