Background: Popehat covered a tenuous grievance filed over an April Fools satire in the University of Wisconsin-Superior’s student newspaper. A UW-Superior student responded to Popehat’s coverage, to which Ken White replied here. One of the greivances within the student’s missive was Popehat’s use of the complainants’ names without their express prior consent:
First of all, you’re using the name of Ilana Yokel and Debbie Cheslock without their consent and you attacked them on a personal level, which is a terrible thing to do.
Ken’s response was correct and succinct:
First: Mr. Doe, I do not need anyone’s consent to speak or write their name. There is no legal requirement that I obtain someone’s consent before expressing myself about them, and any such requirement would violate the First Amendment to the United States Constitution. Moreover, you have implied that I need people’s consent to write about them even after they have given quotes to newspapers about an issue of public interest, which takes your complaint from silly to utterly ridiculous.
Admittedly, this post is inspired by something that was not in the student’s letter, but I expected to see based on this kind of lukewarm assertion of privacy: A claim that the individuals’ names are subject to copyright, and that identifying them constitutes copyright infringement. Given the letter’s shaky basis for claiming Popehat could not use the names of the people central to the story, why not double down and invoke the Copyright Act? Right?!
This seems laughable, but presumably it must work sometimes, because people keep trying it. Some have tried–unsuccessfully–to claim copyright protection in band names, Domsalla v. Stephens, Case No. 3:00-cv-2763, 2001 U.S. Dist. LEXIS 5845 at *4-5 (N.D. Tex. May 3, 2001), and even car parts. Aftermarket Tech. Corp. v. Whatever It Takes Transmissions, Case No. 3:00CV-326-R, 2003 U.S. Dist. LEXIS 27933 at *37-46 (W.D. Ky. Aug. 12, 2003). Short names and titles lack the originality necessary for copyright registration, though, and will be denied registration and any form of protection under the Copyright Act.
The clearest source of this limitation on copyright protection comes from the Copyright Office itself, in the form of Circular 34, last revised in October of 2015. Right off the bat, the two-page document strikes claims that names are subject to copyright between the eyes:
Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright. The U.S. Copyright Office cannot register claims to exclusive rights in brief combinations of words such as:
- Names of products or services
- Names of businesses, organizations, or groups (including the names of performing groups)
- Pseudonyms of individuals (including pen or stage names)
- Titles of works
- Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
- Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.
While the scope of copyright protection under 17 U.S.C § 102 should make this clear, Circular 34 reaffirms this principle. Names are not copyrightable, and anyone claiming otherwise is wrong.