Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

As a general rule, copyright does not protect single words or short phrases, even if those words or short phrases are nonsense. 

Tell it to the Hand. There is an odd collection of copyright cases that indicate that nonsense words may be protectable in different contexts. In a case in which a book of meaningless code words were protected (Reiss v. National Quotation Bureau), the great jurist Learned Hand  (and odd-couple pal to J.D. Salinger) wrote, "Conceivably there may arise a poet who strings together words without rational sequence-perhaps even coined syllables-through whose beauty, cadence, meter and rhyme he may seek to make poetry." (Hand's logic in that case was later used as the basis for protecting  Apple's operating system object code. The protection of inventive words was part of the copyright-software debate  in the late 1980s since nonsense words (source code) are essentially  what facilitate our 'human-machine' communications.)

The Jabberwock. In another case, the great Justice Jerome Frank also mentioned a phrase from Lewis Carroll's Jabberwocky, "Twas brillig and the slithy toves" as an example of a nonsense phrase with sufficient originality to achieve copyright protection. There's also a case involving the word 'Supercalafragalisticexpialidocious' in which the court held that copying an inventive word could 'conceivably' create liability. And finally, a British court reviewing the word "Exxon' indicated that inventive words might be protected in some contexts. So, it's possible a sufficiently original collection of coined words will be protected.

When inventive words are character names. If you use the inventive word as a character name, you can likely achieve trademark protection without much problem. You may also get some peripeheral copyright protection for the character name as well -- for example, in one case, merchandisers were stopped from using the phrase "E.T. Phone Home" under copyright law. 

Alice's House. Yes, the new Tim Burton movie features the Jabberwock as well the complete version of the Jabberwocky poem.

Forest or the Trees Dept. Hmm ... We could go into discussions about substantial similarity, the abstractions test, and trademark infringement (and we could review a previous post on this subject). But it really comes down to whether the folks that own the Indiana Jones trademarks and copyrights feel that your insurance company is channeling its brand. 

NIMBY Please. The Dear Rich Staff feels your passion but prefaces this response with one request - if you are going to take the graffiti route, could you please avoid tagging our street. (We live in the outer Richmond District in San Francisco, a few blocks from the Walgreens). We've got this law in the city that requires the residents to remove graffiti within 30 days and frankly we're tired of using toxic cleaning products and paint. 

You Have Quesitons. Your letter included seven questions and to avoid exceeding the short attention span of our loyal readership, we're going to try and keep our answers brief. As for questions 1 and 2, yes you are infringing, but you have a powerful fair use argument and are not likely to be discovered by anyone who might care. Re: question 3 and 4, yes, you are infringing and commercial uses make the fair use arguments a tougher sell. Still, the trend is to permit this type of use and we think you will likely qualify under a fair use defense (which by the way means you may have to defend yourself in court). 

You're in Art Therapy. As for question 5, you got us with this one. We understand art therapy and its implications and we're fascinated by the argument that copying someone's work is a transformative use (as required for a fair use defense). Alas, we believe that while you are being transformed by the therapy, the underlying work is not. On that basis (and with no caselaw to support our position), we don't think the art-therapy-as-fair-use argument will fly. 

Informational Uses and Trademarks. In question 6, you ask about informational uses. Here you're confusing copyrights and trademarks, a common error since mascots function as both. The "informational" issue relates to use as a trademark. All of your potential uses appear to be informational since you are using these images to make editorial statements. As for making Barbi and Ken do lewd things, that's a whole other issue we'll address in another blog. In any case, we understand that everyone can go through an I-hate-my-Barbie phase.  

The Land of No Copyright. As for question 7, we think you're imagining an off-shore world where you can infringe to your heart's content. The reality is that if your work is sold or distributed in the U.S., you can be sued for infringement here, as can any retailer offering your work. If you're a U.S. citizen that makes it even easier to go after you. So unless you're planning to move somewhere where the residents have set up servers with infringing or illegal content (often a country that ends with the suffix, "stan"), then you will be a target for lawsuits. 

Some Random Thoughts. In a surprising cross-species mascot switcheroo, we were surprised to learn that Trix was once promoted by stick figures and Mickey Mouse. 

To learn more about trademark and copyright law, take a look at my book Patent, Copyright & Trademark Law: An Intellectual Property Desk Reference.