# HOw does copyright law apply to very short works?
**URL:** https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962
**Category:** Factual Questions
**Created:** [August 2, 2004, 1:45pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962 "2004-08-02T13:45:23Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)
#### Post date: [August 2, 2004, 1:45pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/1 "2004-08-02T13:45:23Z")
Brief question. Suppose I really like a poem that has two words in it. If I wrote the poem down here, would I be breaking the poet’s copyright? What if it was a four-line poem? A sonnet?
Where, in other words, is the cutoff for fair use of very short works? Is the amount of a work you can excerpt for fair use figured as a percentage of the entire work, or is it a set amount that’s the same for a four-line poem and for a twenty-volume encyclopedia?
Daniel
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [August 2, 2004, 3:37pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/2 "2004-08-02T15:37:45Z")
One of the tests for fair use is how much of the copyrighted document is being copied, or, as the law says:
> [@](#):
>
> (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
So if you type all of a two-line poem, your fair use defense is very weak if the author chooses to sue you\*. Forrest J. Ackerman has copyrighted a one-letter short story; I could type it here and would probably be in violation if he wanted to push it.
There is no set amount, but if you copy the entire poem, it’s hard to claim fair use.
\*Since there are other consideration, it’s hard to be definitive as to what might happen in court. However, using an entire work would make it very hard for you to get a ruling under fair use.
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### Author:  [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)
#### Post date: [August 2, 2004, 5:24pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/3 "2004-08-02T17:24:29Z")
> [@RealityChuck](#):
>
> Forrest J. Ackerman has copyrighted a one-letter short story; I could type it here and would probably be in violation if he wanted to push it.
Then you’d better hope that 1)he doesn’t want to push it, or 2)the story is “Q”, “X”, or “Z” (in which case **I’d** better hope that he doesn’t want to push it.
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [August 2, 2004, 6:10pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/4 "2004-08-02T18:10:53Z")
> [@Steve MB](#):
>
> Then you’d better hope that 1)he doesn’t want to push it, or 2)the story is “Q”, “X”, or “Z” (in which case **I’d** better hope that he doesn’t want to push it.
You’d have to include the title for it to be a violation.
There are also stories using a single punctuation mark. There’s at least one story with no text at all.
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### Author:  [@Dag\_Otto](https://boards.straightdope.com/u/Dag_Otto)
#### Post date: [August 2, 2004, 6:16pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/5 "2004-08-02T18:16:16Z")
> [@RealityChuck](#):
>
> There’s at least one story with no text at all.
At least one? Could there be two? And if so, wouldn’t the second one be plagiarism of the first one?
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### Author:  [@stpauler](https://boards.straightdope.com/u/stpauler)
#### Post date: [August 2, 2004, 6:22pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/6 "2004-08-02T18:22:03Z")
Wow, get outta my head **LHoD**! I was just thinking about that this morning. There’s a song we sang in elementary school to say good-bye everytime to our music teacher. It’s only four lines long (5 if you include the “cha-cha-cha” at the end) and I was wondering if anyone else has ever sang that song. Without listing the whole lyrics, it’d be pretty hard to get a jist of the song, so I decided against posting the thread.
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### Author:  [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)
#### Post date: [August 2, 2004, 6:22pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/7 "2004-08-02T18:22:58Z")
Has this ever been tested in court? It’s just very difficult for me to believe that if I said, “Bob Smith wrote a story called ‘Harper’s Fairy’ whose entire content consisted of the single letter ‘h’,” I could be successfully sued for copyright infringement.
Does anyone know what the shortest work is that has ever been protected via a court case from infringement? That might help me see what teh parameters are.
Daniel
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### Author:  [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)
#### Post date: [August 2, 2004, 6:30pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/8 "2004-08-02T18:30:40Z")
> [@stpauler](#):
>
> Wow, get outta my head **LHoD**!
Sorry–don’t sue! 😉
**dag’s** question reminds me of [my favorite copyright case](http://news.bbc.co.uk/1/hi/entertainment/music/2133426.stm).
Daniel
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [August 2, 2004, 7:05pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/9 "2004-08-02T19:05:02Z")
There is no good guidance from the courts as to what is Fair Use and what is reasonable. Each case appears to make it up from scratch.
My personal opinion is that authors do not have a reasonable expectation that they can exclude the quotation of extremely short works. One of the best known examples is Ogden Nash’s poem, “Reflections on Ice-Breaking.”
> [@](#):
>
> Candy
> Is dandy
> But liquor
> Is quicker.
People quote this all the time, although probably not in its correct format as given above. Indeed, most people don’t have a clue that it is a poem and has a formal title.
Or that he later added the clause:
> [@](#):
>
> Pot
> Is not.
Phrases that have passed into the language are almost certainly protected, even if they were originally expressed as poems. “Men seldom make passes at girls who wear glasses” is the prime example of this. It was originally a poem, by Dorothy Parker, entitled “News Item.” Again, correctly, it should be written as follows:
> [@](#):
>
> Men seldom make passes
> At girls who wear glasses.
You cannot truly refer to each of these poems without quoting them in their entirety, and thousands upon thousands of people have. I have, in print. Nobody at my publisher said a word to me about it.
There are no set rules. There are no good guidelines. It’s all common sense - until you get to court, at which point anything goes.
The usual advice is to err on the side of caution, but realistically your caution may not be mine and I have no way to express to you the difference.
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### Author:  [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)
#### Post date: [August 2, 2004, 7:12pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/10 "2004-08-02T19:12:29Z")
> [@Exapno Mapcase](#):
>
> My personal opinion is that authors do not have a reasonable expectation that they can exclude the quotation of extremely short works. One of the best known examples is Ogden Nash’s poem, “Reflections on Ice-Breaking.”
Although this Ogden Nash poem isn’t what made me start thinking about the subjet, it was another poem by him (“The Duck”).
I do wonder whether you just violated copyright in any meaningful sense. As you can tell, my intuition tells me that you’ve not, but of course the courts don’t really give my intuition the proper respect it deserves.
Daniel
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### Author:  [@stockton](https://boards.straightdope.com/u/stockton)
#### Post date: [August 2, 2004, 9:35pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/11 "2004-08-02T21:35:48Z")
Hey, \*\*Exapno \*\*-
Good stuff, but you left out my favorite 2-word Nash poem!
[http://www.poemhunter.com/p/m/poem.asp?poet=6637&poem=110379](http://www.poemhunter.com/p/m/poem.asp?poet=6637&poem=110379)
(entitled ‘Fleas’).
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### Author:  [@spingears](https://boards.straightdope.com/u/spingears)
#### Post date: [August 3, 2004, 12:17am UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/12 "2004-08-03T00:17:07Z")
All of this reminds me of “The Emperor’s New Clothes.”
In these cases of alleged copyright infringement the litigants, lawyers, judge, and jury have no common sense nor any other kind.
Any serious court would assign the whole crew to the looney bin.
Imagine ‘playing’ two recordings of silence and trying to deterime which was which.
Bah. Hum Bug! :rolleyes:
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [August 3, 2004, 1:23am UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/13 "2004-08-03T01:23:01Z")
Sigh. RTFA.
Cage’s publishers saw the credit to Cage and put in an automatic claim. Now that Batt retracted the Cage credit nothing is going to happen. It is not really a copyright case about silence; it’s the old story of a clerk doing a mechanical job and sending out the standard letter without any regard to the particulars of the instance.
It makes for a funny news article, but it has no relation to real law. Batt’s playing it for laughs was the best response.
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### Author:  [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)
#### Post date: [August 3, 2004, 3:11am UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/14 "2004-08-03T03:11:05Z")
> [@stockton](#):
>
> Hey, \*\*Exapno \*\*-
>
> Good stuff, but you left out my favorite 2-word Nash poem!
>
> [Fleas by Ogden Nash - Fleas Poem](http://www.poemhunter.com/p/m/poem.asp?poet=6637&poem=110379)
>
> (entitled ‘Fleas’).
Awesome! This poem is the very poem I obliquely referred to in my OP (technically I guess it’s three words, but it’s written like two). When I was little, I read this poem in the Guinness Book of World Records, as the world’s shortest poem, but I don’t think they included the poem’s title, or else I didn’t get the joke when I was wee. All these many years I’ve known this poem, but had no idea what it meant.
And now I know! Thanks!
Daniel
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### Author:  [@stockton](https://boards.straightdope.com/u/stockton)
#### Post date: [August 3, 2004, 3:39am UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/15 "2004-08-03T03:39:28Z")
I’m pleased and proud to sit at the right hand of dorkness.
**Exapno** did all the homework. I just chimed in with a slightly clearer memory than you.
Thanks for the kudos.
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### Author:  [@commasense](https://boards.straightdope.com/u/commasense)
#### Post date: [August 3, 2004, 4:19am UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/16 "2004-08-03T04:19:00Z")
Two things:
“Adam had 'em” is three words, not two.
And according to the copyright office, [“Copyright does not protect names, titles, slogans, or **short phrases**.”](http://www.copyright.gov/help/faq/faq-protect.html)
(Emphasis mine.) This suggests the following questions (in my mind, at least):
[ul]
[li]How long can a phrase be and still be a “short phrase”? [/li]
[li]If a work purports to be a short poem, does that somehow exempt it from being denied copyright protection as a “short phrase”? [/li][/ul]
I strongly suspect that copyright of poems is usually applied to an entire book, which probably means that the fair use objections raised above don’t apply. In that case, quoting one poem in its entirety, even a longer poem than those mentioned here, would not be quoting a complete work.
In short, I don’t think there’s a problem.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [August 3, 2004, 4:00pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/17 "2004-08-03T16:00:37Z")
> [@commasense](#):
>
> I strongly suspect that copyright of poems is usually applied to an entire book, which probably means that the fair use objections raised above don’t apply. In that case, quoting one poem in its entirety, even a longer poem than those mentioned here, would not be quoting a complete work.
This is wrong for two reasons. First, poems are often published separately before being compiled into a book, so they can have individual copyright.
Second, a copyright of a compilation does not in any way fail to protect individual pieces of that compilation.
Copying a complete longer poem is quoting a complete work and would not be allowable, in the same way that copying the complete lyrics to a song is not allowable here. It’s just these odd borderline cases that are in dispute.
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### Author:  [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)
#### Post date: [August 3, 2004, 4:08pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/18 "2004-08-03T16:08:33Z")
Hopefully I didn’t miss an answer, but does anyone know of any cases in which a creator has gone to court to defend the copyright of a very short work in circumstances like these? I mean, obviously, if I try to pass off “Fleas” as my own poem, maybe put it on a greeting card or something, I could get in trouble; but what about any cases in which someone has used them in ways that they could normally use short excerpts from a longer work?
Daniel
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### Author:  [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)
#### Post date: [August 3, 2004, 4:21pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/19 "2004-08-03T16:21:54Z")
I understand Ashleigh Brilliant successfully sued someone for copyright infringement over one of his trademark witty phrases that are all 17 words or fewer.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [August 3, 2004, 6:06pm UTC](https://boards.straightdope.com/t/how-does-copyright-law-apply-to-very-short-works/257962/20 "2004-08-03T18:06:54Z")
The wording is very important here. Has Ashleigh Brilliant been successful in his many suits? Yes. Has he won cases that have been decided by courts? One, yes, which I’ll touch on in a moment.
Brilliant claims copyright to his phrases, although some people have said that some are not original to him and so do not deserve copyright.
In any case, he files suits whenever he sees these phrases used elsewhere.
Check these [IPO archives](http://www.ipo.org/Template.cfm?Section=Archives&Template=/TaggedPage/TaggedPageDisplay.cfm&TPLID=140&ContentID=10991):
> [@](#):
>
> According to the Wall Street Journal, Ashleigh Brilliant, a former professor who asserts copyright rights in short, catchy phrases, says he has settled 134 infringement claims. David Brinkley’s publisher has settled with Brilliant for $1,000 on a claim of infringement of “Everybody is Entitled to My Opinion.” Brinkley calls it a shakedown.
The suit was settled, not adjudicated.
Robert X. Cringely took him on somewhat more directly here, though the following quote is from a “Bob”:
> [@](#):
>
> “There is a chap, perhaps you know him, Ashleigh Brilliant, who has a nice little business going on with his aphoristic potshots, illustrated postcards and other creations. I should have said ‘litigious chap’ because he’s ready to sue at the utterance of one of his copyrighted sayings—and after all, he has trademarked ‘Brilliant Thoughts’ and is ready to sue anyone who tries to outbrilliant Ashleigh.”
>
> “From his website: ‘My copyrights have been tested in U.S. Federal Court, and found to be ‘valid, subsisting, and enforceable.’ (Brilliant v. W.B. Productions Inc., U.S. District Court, Los Angeles, Civil Action #CV 79 1893-WMB. Judgment entered 10/22/1979. See also Richard W. Stim, ‘Copyright Protection for Literary Phrases,’ in New Matter [Official Publication of the State Bar of California Intellectual Property Section] Vol. 14, No. 4, Winter 1989, pp. 7-12).”
>
> “An editor friend first told me about Brilliant’s rabid (and successful) pursuit of copyright violations. All Brilliant had to do whenever he encountered one of his aphorisms used without permission was to write a letter to the publisher, citing the judgment in the above quotation, and demanding $500 in lieu of a lawsuit. Invariably the publisher paid off. A nice sideline. I had a vision of a gaggle of Brilliant bounty hunters who would track down violations for a cut of the take (more likely a Google than a gaggle—Bob).”
The Cringely piece has a convenient link to [this Law Review article](http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bclawr/44_2/07_TXT.htm):
> [@](#):
>
> CONTROLLING OPPORTUNISTIC AND ANTI-COMPETITIVE INTELLECTUAL PROPERTY LITIGATION, by Michael J. Meurer
>
> Opportunistic copyright suits typically pit a minor author against a later, successful author. The plaintiff claims the defendant copied from the plaintiff’s earlier work. Some enterprising plaintiffs strength-en their claims by distributing their works to potential defendants; then they can credibly argue that the defendants had access to the works. Opportunistic copyright claims are also likely when both the plaintiff and the defendant base their work on something in the public domain. The chutzpah award in this field goes to Ashleigh Brilliant, who coined 7500 aphorisms and mounted more than a hundred successful copyright infringement suits.[sup]59[/sup]
>
> 59 See Shulman, supra note 29, at 9. A plaintiff is more likely to succeed by bringing a sequence of frivolous suits like those brought by E-Data, S Industries, and Brilliant than by bringing an isolated suit. The plaintiff can develop a reputation for imposing costs on defendants even if that also means costs to the plaintiff. The reputation for being tough makes the frivolous claim more credible and more valuable. See Reinhard Selten, The Chain Store Paradox, 9 Theory & Decision 127 (1978), and subsequent work by economists on reputation.
So what about the case he won? That’s covered in an excellent article on fair use – [I May Not Be Totally Perfect But Parts of Me Are Excellent: Copyright Protection for Short Phrases](http://fairuse.stanford.edu/commentary_and_analysis/2003_09_stim.html) - by the same Richard J. Stim that Brilliant references in the Cringely piece.
> [@](#):
>
> In the examples above, the cases analyzed situations where a phrase is derived from a larger work. But what if the phrase is the whole work? Will copyright ever protect it? The possibility was explored most famously by Judge Frank in Heim v. Universal Pictures Co., Inc. In Heim, the issue arose as to whether the copyright of a musical phrase would be enough to justify a finding of infringement. Judge Frank determined that lack of originality, not brevity, is what prevents the separate copyrightability of a phrase. This originality could be demonstrated by a phrase that was so idiosyncratic that its appearance in another work would preclude coincidence and, as an example, Judge Frank cited Edna St. Vincent Millay’s title and opening line to her sonnet, “Euclid alone has looked on beauty bare.” Or, as copyright scholar Melville Nimmer summed up the standard, “The smaller the effort (e.g., two words) the greater must be the degree of creativity in order to claim copyright protection.”
>
> Obviously, terse statements such as, “Contents Require Immediate Attention” or, “Gift Check Enclosed” do not exhibit sufficient originality. But do statements of advertising copy, haikus, or jokes, all of which rely on brevity and simplicity, rise to the necessary level of originality?
>
> One example of the higher degree of creativity necessary for copyright protection is evidenced by Ashleigh Brilliant, the author of literary phrases sold on postcards and merchandise. (For examples of Brilliant’s “Pot-Shots,” see [www.ashleighbrilliant.com](http://www.ashleighbrilliant.com).)
>
> In a 1979 case, a company copied two of Brilliant’s phrases-“I may not be totally perfect, but parts of me are excellent” and “I have abandoned my search for truth and am now looking for a good fantasy”-and altered a third phrase, all for sale on t-shirt transfers.
>
> The district court acknowledged that the phrases were distinguished by conciseness, cleverness, and a pointed observation, and ruled that they were protected by copyright. By fulfilling the higher creative standards of an epigram, Brilliant’s Pot-Shots also satisfied the inverse relationship between originality and length discussed by Judge Frank and Professor Nimmer.
>
> In Brilliant, the clever arrangement of a small group of words established the required degree of originality. However, arrangement of words is not the only means of demonstrating originality in a short phrase. Evidence of creativity also is demonstrated by the use of inventive words or language.
So. A long phrase of sufficient originality may be copyrightable, and others can certainly be prevented from making money off the phrase. So may a short phrase.
But what of Fair Use? you ask.
> [@](#):
>
> However, there are some cases where a borrower has a very strong argument that fair use will apply-for example, borrowing a few lyric lines of a song in a review or new article. But when the use of short phrases lacks some transformative value or fails to offer some insight or commentary-for example, copying phrases on a T-shirt-the fair use argument is harder to win….
>
> Claiming fair use or parody as a defense has an unfortunate hitch. The only way to find out if you’re right is to have a court rule on the matter.
I think this all backs up my original position. The use of a complete short poem in legitimate discussion, review, or commentary in almost certainly protected as Fair Use. But you cannot go on to use the poem in any commercial sense.
IANAL
(Note: I left out footnote numbers where irrelevant.)
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