What are the penalties for copyright infringement, particularly when profits are derived from that infringement? My father has a product, a ...

Question

What are the penalties for copyright infringement, particularly when profits are derived from that infringement? My father has a product, a simple five-word slogan which he sells on bumper stickers and t-shirts, that has been appropriated by a couple other companies. The graphic designs on their products are different, but it's the same copyrighted slogan. What sort of consequences would they face if we pursued legal action?

Answer

If the copyright is registered with the Copyright Office, you may have a very good case indeed (inlcuding large statutory damages). If not you have a so-so case at best. Watch out for legal time limits.

Answer

As a Franchise Attorney I need to say you can't copyright a slogan. You may be able to trademark a slogan and protect it that way. Consult with a good business or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

Answer

Are you sure the slogan is copyrighted? Under common law, or by registration with the Feds?

Five words probably falls below the standard for a copyrightable "original creative work." The following is quoted from the official copyright office web site:

"Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

"Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information."

There is a remote possibility that California's unfair competition law may provide some basis for suit. I don't think there's much chance for a suit based on common-law copyright, due to the limitations inherent in statutory copyright and the way the courts would interpret them.