Robert W. Clarida and Robert J. Bernstein
It’s a common fact pattern: A songwriter alleges that another songwriter has infringed the lyrics of Song A by using a similar short phrase, frequently a current slang phrase, in the lyrics of Song B. Claims like this do not often succeed because “words and short phrases such as names, titles, and slogans” are “not subject to copyright.” 37 CFR §202.01.
So even though a short phrase like “just do it” might be protectable as a trademark, it is not copyrightable, and the mere presence of such a phrase in both Song A and Song B is not enough to make Song B an infringement, even if plaintiff proves access and copying. See, for example, Lessem v. Taylor, 766 F. Supp. 2d 504 (S.D.N.Y. 2011), in which the parties’ works both included the phrase “this is how we do.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
