Monday, 11 April 2011

Copyright in a 23-word listserv message?

Only if it's highly original. A California court made clear that there's no copyright in a short listserv posting, in  Stern v. Does, 09-cv-01986 (C.D. Cal.; Feb. 10, 2011) (see Eric Goldman's blog here) which merely sought information about others' experience of a firm of forensic accountants. It took the court 30 pages to do so, a degree of thoroughness that seems disproportionate to the triviality of the claim. The point is made that the first stanza of Jabberwocky (not, as the Goldman blog says, the whole poem) comprises 23 words but displays more than enough originality to qualify for the protection of the copyright laws. I can't imagine an English court would approach the matter very differently - indeed, if a copyright work must be its author's own intellectual creation (per the (EU) Court of Justice in Infopaq) a claim like the one in this case would be a complete non-starter.

As the court said, though in the original with the translation in a footnote, “He will win who knows when to fight and when not to fight.” Sun Tzu, The Art of War 32-33(Lionel Giles trans., Ulysses Press 2007). Perhaps there might even be copyright in a 13 word sentence. Perhaps more important in this day and age, a 57-character sentence. 125 characters (by my count) in the first stanza of Jabberwocky, suggesting there's every reason to believe that copyright can subsist in a Tweet: the listserv message in suit would require a little condensing as it comes in at 152 characters. So, one-fifth longer than Lewis Carroll's fragment but without much more that an iota of originality.

The blogger, Venkat Balasubramani, observes:
A court will not argue with an artist over whether something he or she did was sufficiently creative. Are courts more likely to do this when it comes to written material?
I think that depends what you mean by "artist". The use of that word implies a greater degree of originality - a stronger claim to copyright protection - than anyone's doodle. My creativity in the artistic field is probably on a par with the literary creativity shown by the plaintiff in this case, but I would not consider myself an artist nor would I have the nerve to claim copyright in my "work". No need that I can see to apply different levels of creativity in those two fields.

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