FAIR USE: FURTHER, FURTHER ISSUES

IVAN HOFFMAN, B.A., J.D.



        For those non-attorneys (or non-intellectual property attorneys) who have operated on the assumption that there is some fixed word count that determines whether a use of third party material qualifies as “fair use,” there is a case you should strongly consider.  It is a case that was decided in 2000 but did not get all that much publicity despite the ground that it broke.  It is called Cook vs. Robbins, et. al.

        In this case, the plaintiff, Wade Cook, sued the motivational speaker Anthony Robbins and his company for copyright infringement alleging that the defendants used 2 of Cook’s short but, in the estimation of Cook, valuable phrases in Robbins’ works. The phrases at issue were “meter drop” and “rolling stock.”  These were terms used by Cook and later adopted by Robbins but there were only 4 instances of such use within a work produced by Robbins containing approximately 52,000 words.  At issue were 2 key copyright points:

        The case also dealt with the recoverability of profits but for the purposes of this article, I will not discuss this latter issue since it is beyond the scope of the points I wish to make.

Are The Short Phrases Copyrightable?

        The Court referred to other cases that stated the general rule: “Copyright law protects only an author’s expression. Facts and ideas within a work are not protected.”…. “Phrases and expressions conveying an idea typically expressed in a limited number of stereotyped fashions are not subject to copyright protection.”

        Indeed, there is a copyright office regulation, which purports to interpret and be based upon the federal copyright law, which regulation says that no copyright exists in “short phrases.”  It says, in part:

Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright. The Copyright Office cannot register claims to exclusive rights in brief combinations of words such as:

…Catchwords, catchphrases, mottoes, slogans, or short advertising expressions…

        Robbins also argued that the phrases are not protectable because they are the same as other common phrases that have come into wide use such as “day trading.”  The Court distinguished the Cook phrases from the so-called general “stock scenes or scenes that flow necessarily from common unprotectable ideas” as in movies.

        Thus, the Court held that Cook’s expressions in conveying the meaning of “meter drop” and “rolling stock” were creative, even if only minimally so, and were not “stock terms” as used in the financial market but instead were terms that were, within the context of the financial market, not ordinary.

        Thus, it is not merely the words but the contextual usage of the words that plays into the determination of whether or not mere “catch phrases” are protectable.  Thus, the Court found that these 4 words were protected by Cook’s copyright in his book.

Is The Use “Fair Use?”

        Initially of course there is absolutely no fixed word count rule in the United States fair use statute and you should have dispelled this “notion” a long, long time ago.  Read the articles on my site titled “Fair Use” and “Fair Use: Further Issues.”  These articles discuss the legal parameters used by courts in fair use cases.

        The Cook court reviewed these parameters as well.  It found that the use by Robbins was much more about commercial use than for the purposes of education and other non-commercial uses and that the 2 works were both competing in the same marketplace.  In terms of fair use, this latter aspect was very compelling since it meant that the Robbins’ work potentially displaced a market space for the Cook work and this mitigates against a finding of fair use.  Further, even though non-fiction works are often afforded less protection than fictional works, this is not conclusive but is merely one of the factors involved in the fair use determination.  However, for the purposes of this article, though, the most important aspect of this case deals with the amount of use.  The Court stated:

The Supreme Court has instructed that courts should examine how “the extent of permissible copying varies with the purpose and character of the use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994). Defendants argue that the “meter drop” and “rolling stock” expressions were only a “minuscule portion” of Wall Street Money Machine. Even if Defendants are right that the quantity was small, a reasonable jury could still find that the passages were substantially important. Cook testified that the phrases were an “important part of my book” and an “important part of my life.” Cook also testified that the “meter drop” theory is “the very essence of what I teach.”
Conclusion

        This case should dispel the word-count notion prevalent in some circles.  Its message is clear: fair use is not a simple determination and, as I have repeatedly stated, if you cannot license material you run great risks in trying to rely on these “exemptions.”  Cases have been all over the map in their outcome.

        NOTE: After this case was decided, the parties settled the litigation and the decision was withdrawn by the Ninth Circuit and the appeal dismissed.  Thus, although the above reflects what the decision originally was, the case no longer is deemed a valid precedent because of the withdrawal of the same.

© 2001 Ivan Hoffman

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This article is not intended as a substitute for legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  You should consult with an attorney familiar with the issues and the laws.
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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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