Intellectual Property Forum The Intellectual Property Forum

Please login or register.

Login with username, password and session length
Advanced search  

News:

We are looking for moderators.  Message the admin if interested.

Author Topic: "do not exhibit the minimal creativity" - A Definitive Where From?  (Read 1106 times)

mojobadshah

  • Full Member
  • ***
  • Posts: 99
    • View Profile
    • Email

"Words and short phrases, such as titles or slogans, are insufficient to warrant copyright protection, as they do not exhibit the minimal creativity required for such protection." Bell v. Blaze Magazine, NO. 99 Civ. 12342 (RCC), 2001 WL262718, at *2 (S.D.NY.Mar.16, 2001)(citing Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992); see also 37 C.F.R. $ 202.1 (2003).

Taken the above citation, for someone such as myself who has an interest in both language, and language-use in relation to IP regimes and the courts, oftentimes copyright cases and complaints revolve around the questions going int - to get right to the point - why "words" specifically (eg. 1 word), can not be "protected" the common case legal explanation for this always seems to come back to the following terms and this is that a word does "not exhibit the minimal creativity required for such protection," but the more and more I delve into this question, isolated and narrowed down to just the aforesaid, there doesn't appear to be a clear-cut explanation in the books anywhere as to why the Courts have considered the expressibility of even just a single word to be minimal other than the common-case "because my mommy told me so" scenario aka because it is the so-called "holding of the Courts," and all this always appears to be determined absent of the actual scientific or forensic-linguistic facts or according to a "subjective" determination and not "objective" predetermination.  I could throw-in some other "opinions" of that have been considered as to why this is also the case, but to be best of my knowledge, the answer is never accurately conveyed from an empiricist standing or concrete grounding relative to the rules and laws and "truths" which can be predetermined and conveyed according to the actual forensic evidence, for example citations in reference to so-called "check-mate" circumstances "cornering the market" would-be "monopoly" conditions, opinions that convey this legislative reasoning from the perspective that a single word is a "system" in itself and not a "mechanism" (because a single word does actually fall into the category of "mechanism" and not "system"), etc...  etc...  So, is there anyone out there who can competently construe and reinforce this restricted component of the legal phraseology "do not exhibit the minimal creativity" in regards to the overall IP regime, to a definitive legal standpoint.  Because I'm a little weary that I could track the case law circumstances all the way back to the beginning and never be presented with the actual foundational ruling as to why a single word is believed or held by the courts to convey only "minimal creativity" or more to the point why that would be a problem (with the understanding or according to the rational that these forms developed historically in way that is considered exclusive to "speech community" and the potential to produce them has  according to expert view "infinite")?
Logged

Reply From Willy-Da-Shill

  • Newbie
  • *
  • Posts: 2
    • View Profile

Which words do you want to own?
Logged

mojobadshah

  • Full Member
  • ***
  • Posts: 99
    • View Profile
    • Email

Which words do you want to own?

Whichever ones I can according to the "capitalist" ethic....
Logged

mojobadshah

  • Full Member
  • ***
  • Posts: 99
    • View Profile
    • Email

Which words do you want to own?

Whichever ones I can according to the "capitalist" ethic....

To rephrase, myself, so as not to sound overzealous, I'm curious to know where this copyright law language in particular "words... do not exhibit minimal creativity required for [copyright] protection" hails from, originally.  In other words, can we put a name on the judge or jury/specific case where this principle was actually first deduced or decided on?  Because thinking in terms of "loglans," for example, from what I understand these can be entire "language systems" that can be copyrighted so, apart from appropriate "fair use" circumstances where 3rd party usage takes place for say commentaries or reporting, for example, would I be correct in stating that: even 1 of the words or "["Merger of Idea with Expression"] mechanisms" connected to these larger loglan language "systems" would be off limits in a commercial setting, in any specific setting?  I guess to use an even more refined example, what about the word and morphological mechanism QUTLUCH "weapon" which hails from the larger Klingonese "language system" - ownership of copyright to this entire "system" (containing numerous a priori defined "Merger of Idea with Expression" forms) residing with the Star Trek Inc. corporation - if I was to use this 1 word "qutluch" in commerce in the same context would I be subject to copyright infringement, in any specific commercial circumstance?   
Logged

still_learnin

  • Senior Member
  • ****
  • Posts: 357
    • View Profile

"Words and short phrases, such as titles or slogans, are insufficient to warrant copyright protection, as they do not exhibit the minimal creativity required for such protection." Bell v. Blaze Magazine, NO. 99 Civ. 12342 (RCC), 2001 WL262718, at *2 (S.D.NY.Mar.16, 2001)(citing Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992); see also 37 C.F.R. $ 202.1 (2003).
To rephrase, myself, so as not to sound overzealous, I'm curious to know where this copyright law language in particular "words... do not exhibit minimal creativity required for [copyright] protection" hails from, originally. 

Following the chain of citations, the case you cited (Bell) cites to the appellate Arica decision, which in turn cites to the Arica district court decision. So to answer your narrow question, the specific phrase "words ... do not exhibit minimal creativity" appears to come from a district court decision in N.Y. That decision in turn uses a quote from another district court decision -- that quotes uses different words for similar concept ("Words and metaphors are not subject to copyright protection").

I think that answers your narrow question. You can read the Bell v. Blaze decision at https://casetext.com/case/bell-v-blaze-magazine

But perhaps you have a larger question about the history of the doctrine itself. Here are links to a few scholarly articles on the doctrine
http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/563/6WJLTA247.pdf?sequence=6
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4109&context=flr

The quote you refer to ("minimal creativity") should be taken in context. My sense is that the case law doesn't say that NO single word can be creative enough for copyright, but instead that many common words and short phrases aren't creative enough for copyright.

I guess to use an even more refined example, what about the word and morphological mechanism QUTLUCH "weapon" which hails from the larger Klingonese "language system" - ownership of copyright to this entire "system" (containing numerous a priori defined "Merger of Idea with Expression" forms) residing with the Star Trek Inc. corporation - if I was to use this 1 word "qutluch" in commerce in the same context would I be subject to copyright infringement, in any specific commercial circumstance?

I note that this example using Klingon poses a different question than the one you first asked. Your first question had to do with whether a word is protectable by copyright, or put another way, whether a copyright on a particular word is valid. The question of copyright infringement is different question.

if I was to use this 1 word "qutluch" in commerce in the same context would I be subject to copyright infringement, in any specific commercial circumstance?

You probably already know the answer: "It depends on the facts and circumstances; consult a lawyer."

Speaking more generally, an internet search for
Quote
copyright on invented languages
found up a number of informative articles.
Logged
The above is not legal advice, and my participation in discussions on this forum does not create an attorney-client relationship.

mojobadshah

  • Full Member
  • ***
  • Posts: 99
    • View Profile
    • Email


if I was to use this 1 word "qutluch" in commerce in the same context would I be subject to copyright infringement, in any specific commercial circumstance?

You probably already know the answer: "It depends on the facts and circumstances; consult a lawyer."

Speaking more generally, an internet search for
Quote
copyright on invented languages
found up a number of informative articles.
[/quote]

Sounds fair to me.  So to paraphrase what you put to me: From where I see it - it would probably be best to start with the concluding statement you made - whether 1 word can be copyrighted or not - a.) "'minimal creativity' should be taken in context" b.) "[D]epends on the facts and circumstances...." - and this being said 2.) to rephrase what you stated in the converse: 1 word can be copyrighted (but many common words and short phrases aren't creative enough for copyright).  So I get this (more so than not), and to sort the rest out there are several other premises which would determine the matter's outcome eg. the principle of "first use," "likelihood of confusion," "famous mark," etc....  And all this being said I would assume this would, more or less, bring back around to the conditional: "It depends on the facts and circumstances...."

And I would assume that anyone interested - legal scholar or linguist - should consider this "case by case" scenario a definitive explanation going into why in some circumstances 1 word can be copyrighted while in other circumstances 1 word can not be copyrighted (dependent on the facts relative to isolated IP. regime and legal circumstances) et. al. we here "forumers" are both in agreement in this regard?

And after that, I'm curious to know - being as how the a "registration system" such as the USPTO (that deals in all things of an IP. nature), and knowing full well that this is albeit "government run" for-profit corporation, is it absolutely necessary that there is only 1 "copyright registration system" like this here in the USA, and what in your opinion do you think the prospects would be for bluntly "deregulating" a registration system of the like, although this is not exactly the appropriate "forumming space," probably more so in terms of "trademark and service-mark" mechanisms and "trademark... registration systems," run on the bases of a phenomenon that may be considered to be moreso exclusive in terms of a, especially, "wordmarks" etymological nature (keeping in mind these forms are capable of being developed in both the a priori and posteriori fashion and the capability to perform this function is "infinite," but will maybe require more effort than less to generate "consumer recognition" in whatever "statistically selective" sense), prospectively "cultural-linguistic [trademark or copyright] registration systems"?  Maybe to clarify... the "short and sweet" version of this question might more clearly be stated: isn't the foundational service that an IP regime that deals in both copyright, trademark, and even patent rights, if you will, more about identifying "source" and not exactly "money," rather these kinds of intangibly founded property regimes are there to reward a author, creator, owner, or producer's "efforts," in other senses providing innovators with a sort of "meritocracy" on its own in the effort to "promote the useful arts" ?
Logged

MYK

  • Lead Member
  • *****
  • Posts: 4012
    • View Profile

is it absolutely necessary that there is only 1 "copyright registration system" like this here in the USA,
Yes.  Other than government, how are you going to bind others to any registration system you come up with?  Is there any point whatsoever in having the same government administer two or more different systems?

and what in your opinion do you think the prospects would be for bluntly "deregulating" a registration system of the like,
Zero.

If these aren't accurate summaries of your questions, then kindly rephrase your ten-page diatribe into a series of simple interrogatives of 20 words or less each.
Logged
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

still_learnin

  • Senior Member
  • ****
  • Posts: 357
    • View Profile

sort the rest out there are several other premises which would determine the matter's outcome eg. the principle of "first use," "likelihood of confusion," "famous mark," etc.... 

I only skimmed your post, but the above stood out immediately. The three principles you mention are all related to trademark, not copyright. Trademark and copyright are completely different areas of law.

And after that, I'm curious to know - being as how the a "registration system" such as the USPTO (that deals in all things of an IP. nature)

Not true. USPTO doesn't handle copyrights. Also, while it's true that the USPTO is a single agency that handles both trademarks and patents, that really doesn't mean much. The process for registering a trademark is completely unrelated to the process for obtaining a patent.

I didn't really read your argument/diatribe -- it was too wordy and complicated -- but my sense is that it may fall apart once you realize that copyrights and trademarks are fundamentally different.
« Last Edit: 08-18-17 at 10:37 am by still_learnin »
Logged
The above is not legal advice, and my participation in discussions on this forum does not create an attorney-client relationship.

still_learnin

  • Senior Member
  • ****
  • Posts: 357
    • View Profile

If these aren't accurate summaries of your questions, then kindly rephrase your ten-page diatribe into a series of simple interrogatives of 20 words or less each.

+1.

You're just not going to get many answers if we have to spend 5 minutes looking for the question.
Logged
The above is not legal advice, and my participation in discussions on this forum does not create an attorney-client relationship.

Robert K S

  • Lead Member
  • *****
  • Posts: 1709
    • View Profile

Are you guys telling me you don't remember this character and his quixotic quest to trademark "magic", or otherwise have it designated as protected, as Zoroastrian "cultural heritage"?
Logged
This post is made in the context of professional discussion of general patent law issues and nothing contained herein may be construed as legal advice.

mojobadshah

  • Full Member
  • ***
  • Posts: 99
    • View Profile
    • Email

is it absolutely necessary that there is only 1 "copyright registration system" like this here in the USA,
Yes.  Other than government, how are you going to bind others to any registration system you come up with?  Is there any point whatsoever in having the same government administer two or more different systems?

and what in your opinion do you think the prospects would be for bluntly "deregulating" a registration system of the like,
Zero.

If these aren't accurate summaries of your questions, then kindly rephrase your ten-page diatribe into a series of simple interrogatives of 20 words or less each.

I'll try to keep things short and simple...  Already indicated above an understanding that "copyright system" and "trademark system" are two separate protectionist "systems."  Also already indicated that I realized that, ultimately, what I was speaking to would probably be more appropriate in relation to "trademark regimes," but contemplating a copyright "system" that appropriates copy that comes in the form of individual words or "mechanisms" to their respective contributing "loanword" language subfamily groups or privatized corporate "registration systems" (either within the United States Copyright Office framework or separate from; in my view what is more important is that the Courts, not these "registration systems" themselves are there to sort out any disputes when it comes to legitimate "source" and "first use," etc...) in many respects does have its advantages.  To say that a "government run for-profit corporation" like the United States Copyright Office or the USPTO, even, does not have the potential to be deregulated when their is plenty of other "capital" in and around that has already been comes across as somewhat denialist and, honestly, slightly dis-honest. 

I get that it would be difficult to account for every last word or "loanword" speaking in terms of copyright and to then have copyright registrants track and register each and every one of these loanwords or mechanisms to their rightful cultural-linguistic custodian's privately owned or subsidiary "registration system," but putting into effect a more complex "registration system" such as this one from my perspective relegates a larger sense of "authenticity" and "genuiness" in regards to "source," and "witt" too.  I should probably also add that I'm aware that although most cases it would be difficult for any one "speech community" to apply 1 word copy (mechanism) from "foreign" speech community's "language system" that because, apart from the fact that 1 word copy can be developed "posteriori" or out of nothing and infinitely, there is also in existence in "language systems" such as in the case of the "language system" we call English or "American vernacular" a phenomenon we call "synonyms," which means that technically it would be possible to only speak a language and employ copy from exclusive language systems eg. "only English" severed from the rest of the world's myriad ~10,000 "language system" contributions and the copy or individual linguistic or "morphological" mechanisms exclusive to these "original source" language-subfamilies or groups eg. Greek, Italic (French), Sanskrit or Hindi "language systems" et. al. the "Greek-American copyright section or office," the "Italic-American copyright section or office," the "Indic-American copyright section or office" resulting in more accounting and efficient "function of signal" (see Carl Jung on "logos" in relation to its "usefulness"). 

And just out of curiosity, for all you fellas who made posts between this one and my last one, can I get a summary "show of hands" on how the language of common use here in the USA is supposed to be identified, exactly?

   

         
« Last Edit: 08-19-17 at 11:25 am by mojobadshah »
Logged

artchain

  • Senior Member
  • ****
  • Posts: 559
    • View Profile
    • ArtChain Artist and Art Group Directory
    • Email


There are three aspects to the law:

(1) Statutory laws, as enacted by legislative and regulatory bodies

(2) Common law, derived from judicial precidents

(3) Actual practice, as defined by the actions of individuals under the law

Each of these three influences and affect the others, which is part of the reason that laws evolve.

The ideas and theories that you frequently post are not supported by any of the three, which means frankly that you have a snowball's chance in hell of ever seeing any of your ideas come to fruition.

And just out of curiosity, for all you fellas who made posts between this one and my last one, can I get a summary "show of hands" on how the language of common use here in the USA is supposed to be identified, exactly?   

If I were a judge tasked with making a decision that involved the common use of American English, I would refer to recently published dictionaries, which attempt to reflect the actual usage of language, and are probably the best authority on the subject.

mojobadshah

  • Full Member
  • ***
  • Posts: 99
    • View Profile
    • Email


There are three aspects to the law:

(1) Statutory laws, as enacted by legislative and regulatory bodies

(2) Common law, derived from judicial precidents

(3) Actual practice, as defined by the actions of individuals under the law

Each of these three influences and affect the others, which is part of the reason that laws evolve.

The ideas and theories that you frequently post are not supported by any of the three, which means frankly that you have a snowball's chance in hell of ever seeing any of your ideas come to fruition.

And just out of curiosity, for all you fellas who made posts between this one and my last one, can I get a summary "show of hands" on how the language of common use here in the USA is supposed to be identified, exactly?   

If I were a judge tasked with making a decision that involved the common use of American English, I would refer to recently published dictionaries, which attempt to reflect the actual usage of language, and are probably the best authority on the subject.

So, if "American English" is the "language system" that the Courts apply or are familiar with, on a side note and although it may not necessarily be considered a legal question, being as how the courts are considered the so-called "higher segment of language planning" - who takes the credit for "exporting" or "promoting" languages that are mutually intelligible to American English outside of America and England - America or England?  And when forensic-linguists are investigating into language use around the world and come to a determination that the "English language" is the "lingua franca" of the world, from like a loose-fit legal standing does the cred or "unofficial" indebtitude go to the American English or the English English (or does it go to the "Canadian English," etc....)?
Logged
 



Footer

www.intelproplaw.com

Terms of Use
Feel free to contact us:
Sorry, spam is killing us.

iKnight Technologies Inc.

www.intelproplaw.com

Page created in 0.126 seconds with 20 queries.