Draft third edition of USA copyright office compendium – De Minimis Authorship, Words and Short Phrases, Mere Listing, Characters and Scènes à Faire

The term “de minimis” comes from the legal principle “de minimis non curat lex,” which means “the law does not take notice of very small or trifling matters.” As the Supreme Court stated, “copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.” Works that contain no expression or only a de minimis amount of original expression are not copyrightable and cannot be registered with the U.S. Copyright Office.

Words and short phrases, such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship. The U.S. Copyright Office cannot register individual words or brief combinations of words, even if the word or short phrase is novel or distinctive or lends itself to a play on words. Short musical phrases consisting of only a few musical notes standing alone are not copyrightable and cannot be registered with the U.S. Copyright Office, even if the phrase is novel or distinctive.

A mere listing of ingredients or contents is not copyrightable and cannot be registered with the U.S. Copyright Office. The Office may register a work that explains how to perform a particular activity, such as a cookbook or user manual, provided that the work contains a sufficient amount of text, photographs, artwork, or other copyrightable expression. However, the registration does not extend to any list of ingredients or contents that may be included in the work.

Although the copyright law does not protect the name or the general idea for a character, a work that depicts or describes a particular character may be registered if it contains a sufficient amount of original authorship.

A registration for a visual art work, a literary work, or a work of the performing arts that depicts or describes a character covers the expression set forth in the deposit copy(ies), but it does not cover the character per se. In other words, the copyright in the registered work protects the author’s expression of the character, but it does not protect the mere concept of the character.

The copyright in the character itself is limited to the artistic rendition of the character in visual form or the literary delineation of the character’s specific attributes in textual form. (The trademark law may provide additional protection for the character’s name or other attributes if the character is sufficiently distinctive and is used to identify the source of the trademark owner’s goods or services.)

The copyright law does not protect stock characters, settings, or events that are common to a particular subject matter or medium because they are commonplace and lack originality. While scènes à faire cannot be registered by themselves, a work of authorship that contains standard expressions or stock characters, settings, or events may be registered provided that the work as a whole contains a sufficient amount of original expression.