About the Work
This document is a formal decision letter from the Review Board of the United States Copyright Office, dated September 12, 2022, and addressed to David L. Duncan, Esq. It concerns a second request for reconsideration of a refusal to register a copyright claim for a work titled “Untitled,” attributed to Caroline Caldwell. The work in question is a 15-word epigram: “In a society that profits from your self doubt, liking yourself is a rebellious act.” The letter is signed by the Review Board of the United States Copyright Office and constitutes a final agency decision pursuant to 37 C.F.R. § 202.5(g). The document is a legal ruling, not a literary or philosophical text, and its purpose is to determine whether the epigram meets the statutory requirements for copyright registration under U.S. law.
Context
The decision arises within the administrative framework of U.S. copyright law. The Copyright Office Registration Program initially refused the claim on August 14, 2019, finding that the work lacked the minimum literary authorship necessary for registration. Caldwell subsequently requested reconsideration on November 22, 2019, and the Office re-evaluated the claim but again concluded the work lacked sufficient creativity, issuing a second refusal on March 12, 2020. On June 12, 2020, Caldwell requested a second reconsideration pursuant to 37 C.F.R. § 202.5(c). The legal context includes the Copyright Act of 1976, specifically 17 U.S.C. § 102(a), which requires works to be “original works of authorship,” and the Supreme Court’s decision in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991), which established that originality has two components: independent creation and a sufficient amount of creativity. The decision also operates within the framework of the Compendium of the U.S. Copyright Office Practices (Third Edition, 2021), which provides guidance on the registration of short phrases, and relevant case law from federal courts.
Structure of the Book
The document is structured as a formal administrative decision. It begins with an introduction identifying the parties, the work, and the procedural history. It then presents the administrative history in chronological detail, from the initial application on June 11, 2019, through the first refusal, the first request for reconsideration, the second refusal, and the second request for reconsideration. The next section outlines the arguments made by Caldwell in the Second Request, which include three main claims: that the work is not subject to the “short words and phrases doctrine” because it is a full sentence; that the work meets the low threshold for creative expression; and that repeated commercial exploitation of the work provides evidence of creativity. The Board’s decision and reasoning follow, addressing each argument in turn. The document concludes with the Board’s final affirmation of the refusal and the signatures of the Review Board members. The structure is logical and sequential, moving from procedural history to legal analysis to final conclusion.
Detailed Section-by-Section Summary
Part 1: Introduction and Administrative History
The document opens by identifying the parties and the work at issue. The work is titled “Untitled” and is attributed to Caroline Caldwell. It is described as a 15-word epigram: “In a society that profits from your self doubt, liking yourself is a rebellious act.” The letter is signed by the Review Board of the United States Copyright Office. The administrative history is then detailed chronologically. On June 11, 2019, Caldwell filed an application to register the copyright claim. On August 14, 2019, a Copyright Office registration specialist refused the claim, finding the work lacked the minimum literary authorship necessary for registration. On November 22, 2019, Caldwell requested reconsideration of the initial refusal, referred to as the “First Request.” After review, the Office re-evaluated and again concluded the work lacked sufficient creativity, issuing a refusal of the First Request on March 12, 2020, referred to as the “Second Refusal.” In that refusal, the Office stated it has no blanket prohibition against registering short works but reiterated that works constituting “building blocks of creativity”—such as common shapes, colors, words, and short phrases—lack enough creative authorship. On June 12, 2020, Caldwell requested a second reconsideration pursuant to 37 C.F.R. § 202.5(c).
The Board then outlines the arguments made by Caldwell in the Second Request. Caldwell made three arguments: first, that as a full sentence, the work is not subject to the “short words and phrases doctrine”; second, that the work meets the low threshold for creative expression; and third, that repeated commercial exploitation of the work provides evidence of creativity.
The Board affirms the Registration Program’s denial. It cites 17 U.S.C. § 102(a), requiring works to be “original works of authorship.” Originality has two components: independent creation and a sufficient amount of creativity, per Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). The Board notes that short phrases alone are generally not sufficiently creative, citing 37 C.F.R. § 202.1(a), which states that “Words and short phrases” are “not subject to copyright.” It quotes the Compendium of the U.S. Copyright Office Practices § 313.4(C) (3d ed. 2021), stating that short phrases “contain a de minimis amount of authorship” and cannot be registered “even if the . . . short phrase is novel or distinctive or lends itself to a play on words.” The Board concludes that the work does not contain sufficient literary authorship to sustain a copyright claim.
Part 2: Analysis of the Epigram’s Protectability
The passage continues with a formal legal argument regarding the refusal to register the copyright for the 15-word epigram. The Board begins by stating that the work, comprising 15 words, is an unprotectable short phrase. It cites Murray Hill Publ’ns, Inc. v. ABC Commc’ns, Inc., 264 F.3d 622, 627, 633 (6th Cir. 2001), which rejected copyright protection for a phrase of three sentences and 15 words: “Good morning, Detroit. This is J.P. on JR in the A.M. Have a swell day.” The Board notes that it makes no difference that the work is a full sentence, citing Stern v. Does, 978 F. Supp. 2d 1031, 1041 (C.D. Cal. 2011), which held that a single sentence sent to an email listserv is not protected because copyrightability depends on the presence of creativity. It also references the Compendium (Third) § 313.4(C), which notes that catchphrases, mottos, and slogans—even those presenting as full sentences—are not protected.
The Board then analyzes the epigram’s grammatical structure, stating that it does not present an appreciable amount of creative authorship. The words are arranged in an obvious and expected format: two phrases separated by a comma, following the format of a general conditional sentence. The first part provides a general truth of an unspecified time, followed by a statement of generalized circumstances. This format is a common rhetorical arrangement and does not reflect creative or unusual structural choices.
Turning to substance, the Board cites Foxworthy v. Custom Tees, 879 F. Supp. 1200, 1218 (N.D. Ga. 1995), noting that copyright is concerned with originality of expression, not subject matter. The 15-word epigram presents at most de minimis authorship and no appreciable creativity beyond common words and phrases in the public consciousness. It cites Peters v. West, 692 F.3d 629, 635 (7th Cir. 2012), regarding the maxim “what does not kill me, makes me stronger,” and Acuff-Rose Music, Inc. v. Jostens Inc., 988 F. Supp. 289, 294 (S.D.N.Y. 1997), regarding “if you don’t stand for something, you’ll fall for anything.” It also cites Winstead v. Jackson, 509 F. App’x. 139, 144–45 (3d Cir. 2013), which considered phrases like “the strong take from the weak but the smart take from everybody” as common in general or hip hop culture.
The Board states that the Office does not question independent creation. Though the epigram may not be as pervasive as the cited maxims, it comprises words and phrases common to public discourse on society and self, present in 20th and 21st century texts, many predating the work. Any attributable authorship is de minimis and constrained by merger considerations: when there is only one way or a limited number of ways to convey an idea, expression cannot be protected, citing 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.18(C)(2) (2014).
The Second Request asserts that the epigram meets the low threshold of creativity as a “creative and artistic expression of Ms. Caldwell’s thoughts about life in society” and that “there are many ways [this] concept could be expressed.” A literature scan reveals discourse on the ideas, much predating the epigram, but also demonstrates a limited number of ways to express the idea. Writings often use similar sentence structure and words—act, doubt, profit, self, society, rebellious. The Office cannot register a claim based on standard expressions that naturally flow from an idea, citing Compendium (Third) § 313.4(B) and Perma Greetings, Inc v. Russ Berrie & Co., Inc., 598 F. Supp. 445, 448 (E.D. Mo 1984), which states that phrases conveying an idea typically expressed in a limited number of ways are unprotectable.
Part 3: Response to Additional Arguments and Final Conclusion
The concluding portion of the decision addresses two additional arguments raised in Caldwell’s Second Request for reconsideration, then issues the final conclusion.
First argument — case law on short phrases: Caldwell cites three court cases in which short phrases were found protectable. The Board distinguishes two of these cases on the ground that the phrases at issue were portions of larger registered works, not standalone submissions. In Greene v. Ablon, 794 F.3d 133, 160 (1st Cir. 2015), the court found a five-word phrase (“your explanation guides your intervention”) substantial and creative enough for protection, but only because its creativity derived in part from its “succinct articulation of a complex concept,” connecting the phrase to expressions in the larger work. In Applied Innovations, Inc. v. Regents of Univ. of Minn., 876 F.2d 626, 635 (8th Cir. 1989), test statements such as “I am a good mixer” and “No one seems to understand me” satisfied the minimal originality standard “at least within the context of the administration of the MMPI” exam. The Board notes that in neither case did the court find the phrases registerable in isolation, without context; finding copying of a sentence from a larger work actionable does not mean the sentence itself is registerable.
The third case, BRILLIANT v. W. B. Prods., No. 79-cv-1893, 1979 U.S. Dist. LEXIS 9092 (C.D. Cal. Oct. 17, 1979), involved three epigrams that had already been issued registration certificates by the Copyright Office, with registration numbers provided. The Board states that registration decisions have no precedential value and are non-binding on the Office when examining other applications; two registration decisions from 40 years ago are not persuasive. The Board cites Compendium (Third) § 309.3.
Second argument — commercial exploitation: Caldwell argues that “repeated commercial exploitation” of the epigram evidences that the work meets statutory requirements. The Board disagrees, stating that the Office does “not consider the marketability or commercial success” of works submitted for registration; commercial success is one of several “factors that have no bearing on whether the originality requirement has been met.” The Board cites Compendium (Third) §§ 310, 310.10, and Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002, 1015 (2017): “Nothing in the statute suggests that copyrightability depends on market surveys.”
Conclusion: The Review Board affirms the refusal to register the claim in the work. Pursuant to 37 C.F.R. § 202.5(g), this constitutes a final agency decision. The decision is signed by the U.S. Copyright Office Review Board members: Suzanne V. Wilson (General Counsel and Associate Register of Copyrights), Maria Strong (Associate Register of Copyrights and Director of Policy and International Affairs), and Jordana Rubel (Assistant General Counsel).
Main Arguments
The primary argument of the document is that the 15-word epigram does not contain sufficient creative authorship to qualify for copyright registration. The Board’s reasoning rests on several pillars. First, the work falls within the “words and short phrases” doctrine, which excludes such expressions from copyright protection under 37 C.F.R. § 202.1(a). The Board emphasizes that this doctrine applies regardless of whether the phrase is a full sentence, citing case law and the Compendium to support this position. Second, the epigram’s grammatical structure is common and unoriginal—two phrases separated by a comma in a conditional format—and does not reflect creative or unusual structural choices. Third, the substance of the epigram comprises words and phrases common to public discourse on society and self, with similar expressions appearing in 20th and 21st century texts predating the work. Fourth, the merger doctrine applies: when there is only one way or a limited number of ways to convey an idea, the expression cannot be protected. The Board argues that the idea behind the epigram can be expressed in only a limited number of ways, and the work’s language naturally flows from the idea. Fifth, the Board rejects Caldwell’s reliance on case law where short phrases were found protectable, distinguishing those cases on the ground that the phrases were part of larger works and not standalone submissions. Sixth, the Board rejects the argument that commercial exploitation evidences creativity, stating that marketability has no bearing on the originality requirement. The overarching argument is that copyright protection requires a threshold of creative authorship that this epigram fails to meet.
Key Concepts
Several key legal concepts underpin the Board’s decision. Originality is the foundational requirement for copyright protection, comprising two components: independent creation and a sufficient amount of creativity, as established in Feist. The words and short phrases doctrine is a statutory and regulatory exclusion from copyright protection, codified at 37 C.F.R. § 202.1(a), which states that words and short phrases are not subject to copyright. The de minimis authorship concept holds that some expressions contain so little creative input that they fall below the threshold of protectability. Merger doctrine is another key concept: when an idea can be expressed in only one way or a limited number of ways, the expression merges with the idea and cannot be protected, because protecting it would effectively monopolize the idea itself. Independent creation is acknowledged by the Board—it does not question that Caldwell independently created the work—but independent creation alone is insufficient without a sufficient amount of creativity. Non-precedential value of registration decisions is also a key concept: the Board states that prior registration decisions, such as those in the BRILLIANT case, have no precedential value and are non-binding on the Office. Finally, the concept that commercial success is irrelevant to copyrightability is emphasized, with the Board citing Star Athletica for the proposition that copyrightability does not depend on market surveys.
Themes
The document engages with several themes that extend beyond the narrow legal question. One theme is the tension between creativity and common expression. The Board acknowledges that the epigram may express a meaningful idea but argues that the expression is too common and too close to standard formulations to warrant protection. This raises the question of where the line falls between protectable creative expression and unprotectable common language. Another theme is the relationship between ideas and their expression. The Board’s application of the merger doctrine highlights the principle that copyright protects expression, not ideas, and that when expression and idea are inseparable, protection is denied. A related theme is the threshold of creativity: the document explores how much creativity is required for a work to be protectable, and where that threshold lies for very short works. The theme of context versus isolation also emerges: the Board distinguishes between phrases that are protectable within the context of a larger work and phrases that are submitted as standalone works, suggesting that context can affect the assessment of creativity. Another theme is the role of commercial success in intellectual property law: the Board firmly rejects the notion that market success or commercial exploitation has any bearing on copyrightability, emphasizing that the statutory requirements are the sole criteria. Finally, the document touches on the nature of administrative decision-making, particularly the principle that prior registration decisions are not precedential and that each application must be examined on its own merits.
The Author’s Conclusions
The Review Board of the United States Copyright Office concludes that the 15-word epigram “In a society that profits from your self doubt, liking yourself is a rebellious act” does not contain sufficient creative authorship to sustain a copyright claim. The Board affirms the Registration Program’s denial of registration. The conclusion is based on the following reasoning: the work is a short phrase that falls within the regulatory exclusion for words and short phrases; its grammatical structure is common and unoriginal; its substance comprises words and phrases common to public discourse; the merger doctrine applies because the idea can be expressed in only a limited number of ways; the case law cited by Caldwell does not support registration because the phrases in those cases were part of larger works; and commercial exploitation does not evidence creativity. The Board’s decision constitutes a final agency action, and the refusal to register the claim is affirmed.
Significance
The significance of this decision lies in its clarification of the standards for copyright registration of very short works, particularly epigrams and slogans. The decision reaffirms the Copyright Office’s position that short phrases, even those that are full sentences and express a complete thought, generally do not meet the threshold of creative authorship required for registration. The decision also clarifies the application of the merger doctrine to short phrases, holding that when an idea can be expressed in only a limited number of ways, the expression is not protectable. Additionally, the decision reinforces the principle that commercial success or marketability has no bearing on copyrightability, a point that is significant for applicants who might argue that the popularity of a phrase evidences its creativity. The decision also establishes that prior registration decisions are not precedential, meaning that the fact that similar epigrams were registered in the past does not obligate the Office to register new ones. For practitioners and applicants, the decision provides guidance on the types of short works that are likely to be refused registration and the reasoning the Office will employ. The decision also underscores the importance of context: phrases that may be protectable as part of a larger work are not necessarily protectable as standalone submissions. Overall, the decision serves as a definitive statement of the Copyright Office’s approach to short phrases and epigrams, and it is likely to be cited in future administrative and judicial proceedings involving similar works. The decision is signed by the three members of the Review Board, lending it the authority of the Office’s highest administrative review body, and it constitutes a final agency decision from which no further administrative appeal is available.
