Picture"Call me, maybe?" (image credit http://popdust.com/2012/06/19/carly-rae-jepsen-call-me-maybe-lyrics-analysis/)
By now its practically a universal symbol of, well, I’m not quite sure. Only that I have seen it in numerous avatars and it has generally gone “viral”. Just in time for Easter somebody has actually made one of these fanciful shark figures out of peeps. I’m talking of course about Katy Perry’s sharks from her halftime show during the Super Bowl. Specifically, the left shark, who seems to have made up his own choreography. What is it about these sharks that seems to have tickled so many people pink?

I’m really not able to say, just like I can’t say what caused the “it’s peanut butter jelly time” dancing banana to take off. I guess people on the internet really have a penchant for taking short clips of comical figures, pairing them with a short pithy statement, and using it to charm fellow internet users with a laugh, in an endless pursuit of a million Facebook likes. Or maybe it stems from Twitter’s 140 character limit rule; it really forces us to make the message small and compact. Just as Josh Billings said: “There’s great power in words, if you don’t hitch too many of them together.” 

Take the lyrics from this catchy song from Carly Rae Jepsen:


“Hey I just met you
And this is crazy
But here’s my number
So call me maybe”

They should sound fairly familiar, considering they are from a song that placed high on the Billboard charts (this means it was widely played!) and its election as Song of the Year in 2012 by MTV (this means… actually, I have no idea). Also, if you have kids in the age range of 10-18 or even early 20’s, if you happen to catch a little of their music, you’ve probably heard this song before. Although these lyrics represent just a snippet of the song, they are probably the most highly quoted.

At least that’s the impression you get when you do a search on Google for “I just met you” t-shirt. Actually, that’s what prompted this post: seeing these same lyrics (in pretty much unadulterated fashion) printed on the back of a shirt promoting a student housing complex close to a well-known university, which happens to be my alma mater. Apparently the good folks at the marketing agency for this housing complex thought such lyrics would play well to their potential clientele. Judging by the popularity of the song amongst the demographic (see above), it seems they guessed right.

I wonder if this student housing complex or any of the other designs selling shirts online on CafePress or other such sites got Jepsen’s permission to print these lyrics on shirts? Seeing as how many businesses mostly overlook this kind of permission-getting as a formality (or, increasingly common, as antiquated given the open nature of content distribution), it seems unlikely. The costs associated with contacting a lawyer, getting an opinion about the legal ins and outs of the advertising campaign, and reaching out to Schoolboy Records to get permission to reproduce a portion of the lyrics.

Yes, you need permission to even use a portion of a song. In a song, there are at least two components that are copyrightable: the lyrics and the actual sound recording of the song (there are additional copyrightable elements, but I’m trying to keep it simple). Just as you can’t take clips of a song and use them as background music in a video (say for a commercial), you can’t take portions of the lyrics and use them for any old reason you want (again, there are exceptions but I’m speaking strictly of commercial uses). Even one or two lines from a chorus, or short 3-second clips of music could rise to the level of impermissible copying. The main question is whether an ordinary observer would conclude that the alleged copy was actually copied from the copyrighted work.

This standard doesn’t apply to absolutely everything in the copyrighted work. Just as we saw with the Frozen movie, there are certain things that a copyright holder cannot claim ownership over. Things like ideas, facts, concepts, and really short phrases cannot be exclusive to one author. Otherwise, one owner could claim a monopoly over these commonly-used elements preventing others from incorporating them into possibly creative works, and that is just not cool if one of the main motivations of copyright law is to harbor creativity through the prospect of long-term protection for such creativity.

Now there is a little doctrine in copyright law called originality, which requires some minimum level of creativity. You might remember the discussion on this from this blog’s posts on Frozen and the attempt by one author to recover against Disney for ripping off Frozen’s plot from the author’s book. There the issue was whether certain plot elements, common to specific genres of literature, should receive copyright protection such that no other author should have the opportunity to use those plot elements in their story. Indeed, the court dismissed the suit filed by the author because the author’s claims amounted to protection of ideas, not the actual expression of those ideas.

Originality comes into play routinely in the situation of short phrases. Generally, single words or short phrases of 5 words or less are not afforded copyright protection for the simple reason that such phrases do not require the exertion of substantial independent effort to create. Think of it this way: it’s easy to put together a phrase such as “How do you do”, a phrase which seems to come naturally as a method of introducing yourself to someone else. Conversely, a less intuitive phrase such as “It was the best of times, it was the worst of times”, which was (at least before Charles Dickens penned it) an uncommon way to encapsulate an epochal viewpoint, likely required more of an effort by the artist to put the string of words together. As one court put it: the smaller the effort in putting together a phrase (e.g. two words), the greater the amount of creativity needed for copyright protection to be granted.

Yet the Copyright Office does not provide much guidance on what is a short phrase. For example, guidelines posted on the Copyright Office’s website merely explain “even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright.” This guideline, though, probably applies to obviously non-creative phrases like model numbers because a model number appears a lot easier to formulate (and may be less expressive) than a catchy line from a song, even if the line is short.

As annoying as the chorus in Jepsen’s song may have become, the phrase is relatively long and creative. It expresses two different, seemingly competing ideas (handing out a phone number to a complete stranger and wanting to form a long-term relationship with someone you just met), and it does it in a pithy manner. It is not a predictable variation of the two competing ideas, even if it is common for someone to say “Here’s my number”. The overall implementation of that phrase with the rest of the chorus is what makes the phrase protectable independently from the rest of the song.

Because the chorus is protectable, this gives Jepsen the right to enforce it against any person that copies it or even uses some alternative version so as to incorporate their own message into the phrase. All she would have to show is that the person making the shirt had a chance to listen to the song (not a very high hurdle when the underlying song was #1 on the Billboard charts) and that the phrase is substantially similar. Doubtless the musical artists that write catchy choruses (and the record companies that sign contracts to distribute the music and basically profit from anything even remotely connected to the song) expect their songs to have some commercial success. That’s what all aspiring artists strive for and why agents get paid great money to find every possible outlet for revenue generation.

And musical artists are getting increasingly aggressive with their intellectual property, as evidenced by Taylor Swift’s recent tear in registering trademarks for short phrases from her own songs. Jepsen hasn’t gone to the same lengths, yet. Maybe pop stars don’t have the same kinds of discussions around the water cooler that lawyers do.

I know one thing: I would be nervous simply slapping lyrics on a shirt and using it to promote my business, even if the lyrics comprise a short portion of the song.
 


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