Size Matters (or Should) in Copyright Law

American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.
This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright’s low threshold of originality. This paper proposes that in order to stem any trend toward independent copyright protection of such microworks, we must recognize – and embrace – our implicit notion of a work. Single words, numbers, and short phrases are properly denied independent copyright protection not because they always lack originality, but because they are never works.

Justin Hughes

Fordham Law Review

2005

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