To Quote or not to Quote: that is the question

Is the quote a literary or dramatic work under the Copyright Act?

To be protected by copyright, the work needs to be ‘original’ and it needs to be expressed or ‘fixed’ in a ‘material form’. In the case of quotes, the question is usually whether the work is too insubstantial for originality to subsist.

• This means that, in Australia, a newspaper headline will generally not be protectable because it is too short and comprises merely a reference to the content of the article. See Fairfax Media Publications v Reed International Books Australia (2010) 272 ALR 547. The Australian position should, however, be contrasted to the UK, where newspaper headlines have been found protectable because they involve considerable skill in order to fulfil the objective of capturing the reader’s attention and inducing them to read the article. See Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] All ER (D) 306 (Nov).
• The title of a movie or book? Generally, no, as like newspaper headlines, they are usually too short and not substantial enough to amount to a literary work.

The reasoning here is that, whilst such quotes, words or tag lines are not protected by copyright, trade mark law can still offer protection if are intended to operate as a badge of origin of particular goods or services. In other words, consider applying for a trade mark registration for your memorable word or phrase, rather than rolling the dice on whether a court will confirm the existence of copyright protection should someone copy you.

What might involve infringement?

If the original work that the quote is taken from is protected as a literary or dramatic work, the test is whether a substantial part of the original work has been reproduced, assessing the material qualitatively, not quantitatively.

Let’s consider the following:

• Four lines from a thirty-two line poem? In Kipling v Genatosan [1917-23] MacG Cop Cas 203, the court held that reproduction of 4 lines from Kipling’s 32 line poem “If” amounted to copyright infringement.
• A single ‘invented’ word? Possibly. In Exxon Corporation v Exxon Insurance Consultants [1982] Ch 119, Graham J gave the example of the word ‘Jabberwocky, which could be regarded as a substantial part of Lewis Carroll’s well known poem in the novel ‘Alice Through the Looking Glass’. However, Graham J did not consider that the invented word alone could be considered a literary work if it was not embodied in the poem – the poem had given the word qualities or characteristics in itself.

Our ‘quotes quiz’

Now that you’ve got the basics, why not test your skills by answering this quiz.

Questions

1. “The Man who Broke the Bank at Monte Carlo” – Does copyright subsist?

2. Would it be an infringement of copyright to use the word “Supercalifragilisticexpialidocious”?

3. ‘ Exxon’ – Copyright or trade mark law?

4. Would the phrase “Twas brillig and the slithy toves” be protected as a literary work?

Answers

1. In Francis Day and Hunter Ltd v Twentieth Century Fox Corp Ltd [1940] AC 112 the Court held that the title of the song “The Man who Broke the Bank at Monte Carlo” was too insubstantial to be protected by copyright. However this was a UK case and the question at that time was not whether it was a literary work, but whether it came under the definition of “book” within the UK 1982 Act.
2. In the US case of Life Music v Wonderland Music [1965] 241 F Supp 653, the court stated that the single word “Supercalifragilisticexpialidocious” might be able to be protected by copyright. However, in this case the party attempting to assert ownership failed to prove that they were in fact the original author of the word. .
3. In Exxon Corporation v Exxon Insurance Consultants [1982] Ch 119, the Court held that the word Exxon was not a literary work and was not, therefore,
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   protected under copyright. This was definitely an option more suited to trade mark registration.

4. In Johnson & Johnson Australia v Sterling Pharmaceuticals (1991) 101 ALR 700, the court thought that these words were a “brilliant example of sustained use of new-coined words to convey an imprecise, but yet vivid, descriptive meaning…” Although copyright was not discussed, it is arguable due to the courts view of these phrases that they would amount to a literary work.