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Size Matters (or Should) in Copyright Law

63 Pages Posted: 15 Dec 2005 Last revised: 10 Nov 2007

Justin Hughes

Loyola Law School Los Angeles

Abstract

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.

Keywords: copyright, intellectual property

Suggested Citation

Hughes, Justin, Size Matters (or Should) in Copyright Law. Fordham Law Review, Vol. 74, p. 575, 2005; Cardozo Legal Studies Research Paper No. 140. Available at SSRN: https://ssrn.com/abstract=870328

Justin Hughes (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8108 (Phone)

HOME PAGE: http://www.justinhughes.net

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