Stephen King’s novel The Stand is over 500,000 words in length. It’s copyrighted by Stephen King in its entirety. You can probably get away with reprinting a few paragraphs under fair use and with proper attribution.
Microsoft Windows 10 has over 50 million lines of code. It’s copyrighted by Microsoft Corporation in its entirety. You can probably get away with reprinting screenshots and text passages in the software under fair use and with proper attribution.
How about this:
I just came up with this: “Gopher, why?”
I think it’s a literary masterpiece. It’s a short poem, a “flash poem,” if you will. And because these words are my art, it is copyrighted by me…
Or is it?
The US Copyright Office does have rule C.F.R. § 202.1(a), which states that “[w]ords and short phrases such as names, titles, and slogans” are not copyrightable.
It turns out that my “flash poem” is not copyrightable.
But what if instead of copyrighting it as a text, what if I add some stylization and copyright it as a work of visual art? Is my minimalist artwork copyrightable?
Maybe. I would even say probably. And if it is copyrightable, could I sue someone who wrote “Gopher, why?” in Times New Roman font and struck through it? I don’t know.
Legend has it that Ernest Hemingway once wrote a six-word short story that went, “For sale: baby shoes. Never worn.” Could he have copyrighted that story?
In 1952, experimental composer John Cage premiered his three movement piano piece entitled 4’33”, which was actually four minutes, thirty-three seconds of silence. Can you copyright four minutes and thirty three seconds of silence?
In 2016, British film-maker Charlie Lyne produced a film called Paint Drying as a form of protest against the British Board of Film Classification. The film showed over ten hours of paint on a wall drying. Is this copyrightable? What if it was just a ten-second video clip of a blank wall? Would that receive copyright protection as well?
That leads to my big question. Is there a minimum length or amount of effort required for a creative work to be copyrighted? That is, if I drew a line on my office wall with a pencil and called it a work of visual art, could I copyright that?
I’m not a lawyer, but I suspect that many of these extremely short works cannot be copyrighted, but they can be trademarked. While my “Gopher, why?” masterpiece above may not be eligible for a copyright, I can register it as a trademark. An approved trademark can last forever, as long as I continue to actively use it to represent my brand.
If you got this far in my ramblings about tiny copyrights, you’ll probably find this article from Fordham Law Review intriguing.
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