Language and IP rights

scarfaceI bet when you are having a conversation with someone, during the conversation someone will use a popular phrase that has been associated with a product. Or it might be a line from a movie. Maybe a line from a book. You know someone came up with these phrases, can you be accused of IP infringement?

When you hear, “Where’s the Beef”, what do you think of? Wendy’s of course. What about, “The pause that refreshes”? That’s Coke. And, “It keeps going and going and going….” That’s Energizer, of course. These are just a few of the phrases that are iconic and have become a part of our everyday language. Probably the most copied phrases in language have come from the movies or TV. Arnold Schwarzenegger’s, “I’ll be back”. Or Al Pacino’s, “Say hello to my little friend”. Then there’s Rhett Butler’s “Frankly my dear, I don’t give a damn.” Dorothy’s, “Toto, I’ve got a feeling we’re not in Kansas anymore”. It’s easy to see why there is a question of infringement if these quotes are just used by anyone. They clearly relate back to a product or creation.

Quotes usually fall under the “fair use” clause of the U.S. Copyright law. If someone is taken to court over the use of a quote, the court uses a system to determine whether or not copyright infringement has taken place. There are four factors that the judge will use to make a determination. The first factor is whether or not the quote is being used for a commercial purpose or not. The second relates to the nature of the copyrighted work. The third factor has to do with the amount of the portion used in relation to the whole of the copyrighted work. And last, does the use of the quote have a negative effect on the value of the copyrighted work.

In everyday conversation, there doesn’t appear to be any infringement of a copyright of using a movie quote or a product line. We all do it. We aren’t trying to diminish the value of the movie or product. As a matter of fact, it’s free advertising for that movie or product. You will always associate Energizer with that adorable pink rabbit beating on the drum to “It keeps going and going and going…”. So whose batteries are going to come to your mind first?

That’s it for this article, but “I’ll be back”.

Search Widerman Malek

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