LEGAL GUIDE
Written by attorney Jingming Cai | Nov 30, 2011

The Creativity Required For Copyright

How much creativity is required for a work to be entitled to copyright protection?

That was the key question is Syrus v. Bennett, a case decided by the US Court Of Appeals for the 10th Circuit involving the NBA’s Oklahoma City Thunder basketball team and the phrases “Thunder Up," “Go Thunder," and “Let’s Go Thunder".

Under US law, copyright protection extends to “original works of authorship fixed in any tangible medium of expression." 17 United States Code (“USC"), Section 102(a)

However, copyright does not extend to any idea “regardless of the form in which it is described, explained, illustrated, or embodied in such work". 17 USC 102(b)

Further, the term “original", as used in copyright, means the work was independently created. i.e. not copied from other works, “and that it possesses at least some minimal degree of creativity." Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)

In Syrus, the plaintiff wrote a song for the Oklahoma City Thunder, registered the copyright, and gave the song to an unnamed coach, the team’s head cheerleader and the Oklahoma City Mayor’s Office. The lyrics included the phrases “Thunder Up," “Go Thunder," and “Let’s Go Thunder". According to Mr. Syrus, these phrases were used without his permission in banners and advertisements displayed in the team’s arena, and chanted during games by the cheerleaders, team mascot and crowd.

Thus he sued for copyright infringement.

But are the song phrases sufficiently creative to warrant copyright protection?

Earlier cases have noted that copyright protection extends only to works that “are the fruits of intellectual labor." The Trademark Cases, 100 U.S. 82, 94 (1879). It’s well established that words and short phrases such as names, titles, and slogans generally do not qualify for copyright protection, particularly where they “convey an idea typically expressed in a limited number of stereotyped fashions," Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989).

But as the Court of Appeals noted, even “a short phrase may command copyright protection if it exhibits sufficient creativity."

However, in the case at hand, the 10th Circuit Court of Appeals held that “Go Thunder," and “Let’s Go Thunder" “do not reflect the minimal creativity required for copyright protection" because they are “merely predictable variations on a cheer widely used in sports," combined with the name of a team.

Mr. Syrus lost his battle.

A more interesting analysis might have ensued in regards to the phrase “Thunder Up", which was also in the Syrus song. At first blush, “Thunder Up" feels more creative than the other phrases, and it is not a variation on a cheer widely used in sports. But, as it happens, Mr. Syrus disclaimed any rights to the phrase “Thunder Up" as part of his appeal, thus making it an issue the Court of Appeals did not need to address.

Although it’s unclear why this occurred, the case certainly would have been more interesting if “Thunder Up" was in the mix.

The Order and Judgment in Syrus v. Bennett was entered on November 3, 2011. The decision is unpublished and, as such, has limited value as legal precedent but it can be cited by other courts for its persuasive value.

Schein & Cai LLP, is a focused business and intellectual property law firm advising startups and established companies in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.

Additional resources provided by the author

Schein & Cai LLP, is a focused business and intellectual property law firm advising startups and established companies in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.

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