What About Generic Copyright?

We all know that certain trade marks can be too successful, with the result that they become the generic name for the good or service that they are intended to identify.  But what happens when a copyright work becomes "too" successful? Is the result something akin to genericity in trade mark law -- or is something else at work? Before you accuse this Kat of having had too much catnip, consider the following.

Nearly 20 years ago, the Israel Supreme Court had to decide whether a drawing based in large part on the figure of Donald Duck constituted copyright infringement. One of the claims made by the defendant was that the figure of Donald Duck had become such an integral part of modern culture that it no longer could enjoy copyright protection. This claim was rejected and the defendant ultimately was found liable for infringement. However, this Kat has continued to be intrigued by the notion that there may be certain works that are so well-recognized that certain aspects of the work take on a public life and meaning of their own, even if they do not enjoy copyright protection per se.

Spurred on by this intriguing question, this Kat has sought to formulate circumstances in which aspects of protected copyright take on a special role in public consciousness--what we will call "generic copyright". He has come up with at least two variant possibilities for generic copyright. In the first, the element is detached from the work, but its public fame continues to be connected with the underlying copyright work. In the second, the element is not merely uncoupled from the work, but it takes on a public meaning that does not depend upon its original creative context. This Kat has decided that the time has come for him to float this notion with the readership and so--a proposed exemplary list of generic copyright follows.

1. The voice of Jacob, the hands of Esau--And so it is written in Genesis (27:22)--"So Jacob came close to Isaac his father, and he felt him and said, 'The voice is the voice of Jacob, but the hands are the hands of Esau' "(New American Standard Bible). The phrase has become a wide-spread cultural staple whenever one wants to express the notion of inconsistent facts from what should be a single source that should be yielding consistent information.

2. Faustian bargain--I suspect that most of us have not read this greatest of all German literature (even not in translation, shame on us), but the notion of making a pact with the Devil (Faust traded his soul to the devil in exchange for unlimited knowledge and worldly pleasures), with all of the resulting unpleasantries, has become a standard motif of western culture.

3. "Toto, I don't think we're in Kansas anymore." - Who can forget that scene from the Wizard of Oz, when Dorothy finds herself removed from her Kansas cabin due to the tornado, surrounded (at least at knee-length), by those uniquely-voiced Munchkins. Her trenchant comment to her dog Toto has become a standard cultural fare for expressing the notion that one is in a new, unfamiliar situation.

4. "Phony"--Never has a single word from a work of modern fiction taken on a life of its own outside of its original literary moorings. We are speaking about J.D. Salinger's classic, "The Catcher in the Rye" (you may agree or disagree whether it is the great American novel, but this Kat continues to read the book every five years, much to the bemusement of Mrs Kat). The main character, Holden Caulfield, accuses almost every one (at least older than he) of being a "phony." The term has come to connote the dichotomy between the sweet world of childhood innocence and the unpalatable world of shallow adult hypocrisy. Before Salinger's creation, would any of us ever have thought to describe that pompous investment banker down the hall as a "phony"? Today the use of the term is so widespread that we tend to forget its origin.

5. "Catch-22"--The phrase, which is the name of Joseph Heller's monumental work on the potential insanity of armies and war, has come to mean "a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule" (Merriam-Webster.com). Be honest--is there anyone out there who has not referred to a circumstance as "a Catch 22" situation? As European leaders struggle to sort out the current financial crisis, is the current plan to adopt austerity to achieve growth "a Catch 22"?.

6. "My Way"
"And now the end is near
And so I face the final curtain.
My friend I'll say it clear
I'll state my case of which I'm certain. 
I've lived a life that's full
I travelled each and every highway.
And more, much more than this
I did it my way."
Paul Anka's song is so closely identified with Frank Sinatra's rendition that it is perhaps the quintessential example of why we need to protect performer's rights as a neighbouring right. More generally, the phrase "My Way" has become a pithy means to express the actions of a person who lives life on his/her own terms. For those of you old enough to remember, the changes brought about by Mikhail Gorbachev to the former USSR in the 1980s were described as the "Sinatra Doctrine"--Gorbachev did it "his/my way."

7. "Ground Hog Day"--In the movie by the same name, actor Bill Murray plays an egocentric Pittsburgh TV weatherman (can any weatherman from Pittsburgh really be egocentric?) who gets sent to the town of Punxsutawney (this is the real name) to cover the annual Groundhog Day event. If the groundhog sees its shadow, we are in for six more weeks of winter (this is a true tradition in Punxsutawney). Murray finds himself repeating the same day over and over again, waking up to an alarm clock just before 6:00 am each morning. After trying hedonism, suicide attempts, and everything in between, he reexamines his life and priorities. In a short period of time, this phrase has come to mean any situation which we seem to be repeating, until we perhaps alter, our behaviour.

7. "Hotel California"
"Last thing I remember, I was running for the door
I had to find the passage back
To the place I was before
"Relax, " said the night man,
"We are programmed to receive.
You can check-out any time you like,
But you can never leave!"
Has any song ever conveyed imagery as strong as this song by the Eagles? And is there any better way of expressing the notion that it is easy to enter, but difficult, maybe even impossible to leave a situation? Once again, referring to the economic challenges facing the Euro, is Euro membership like the Hotel California, or not? We may learn the answer very soon.

8. "If you build it, he will come"--One of the all-time great fantasy movies-"Field of Dreams"--tells the story of a farmer in Iowa who is spurred on to construct a baseball field in corn fields in response to the exhortation of the unseen voice, who implores--"If you build it, he will come". I leave it to you to discover who the "he" was. Suffice to say, the phrase has become an eloquent way of expressing the idea of pursuing one's inner voice to achieve a goal, as quixotic (I suppose we could have this word to our list) as it might be seem to some.

Well, dear readers, if you have followed this Kat all the way to the end, here is his exemplary list of generic copyright. Maybe it is a bit culture-bound, but that may be unavoidable. Comments anyone?
What About Generic Copyright? What About Generic Copyright? Reviewed by Neil Wilkof on Friday, May 25, 2012 Rating: 5


  1. I really liked this post. That is all.

  2. Neil,

    Not for the first time I find that I am grappling with similar issues as you are. So much so, that I wonder if your blog posting was not partially inspired by our conversation flying back from INTA a couple of weeks back.

    My way of looking at it is like this:

    Kukubarra is an Austalian cultural institution despite Larkin owning copyright. the Men at Work song was played at Sidney olympics and reached no 1 in UK, Aus and US. I think judge was wrong to find copyright infringement despite riff being copied.

    In 7 Year Itch, the wind through the subway grating raises Marilyn Munroe's skirts. Although film is still copyright and this is the most memorable scene (or if you like, the equivalent of the tramp's funny walk and appearance in another Israeli landmark misruling) - nevertheless, I don't think that any of the later films that plagirized it, including My Week With Marilyn, Roger Rabbit or the Woman in Red can be considered as copyright infringement. The Woman in Red is a very interesting comparison as the inclusion is not incidental but central to the plot of the film, so we have a famous scene inspiring a second famous scene.

    I thin such cases should be seen as fair use in the sense that I consider the use to be transformative.

    I should be able to accuse someone of double-speak or a technical inexactitude without being sued by the Orwell or Churchill estates.

    I would like to think that one of the lines you mention could be sued in a later film without resulting in copyright litigation. I suspect that William Patry and others would agree, but I further suspect that we will see more Men at Work decisions and probably more lead singers' lives cut short...

  3. No! This is wrong on so, so many grounds. I don't know where to start.

    There is no copyright in the words "Faustian bargain" and the tale is older than the Goethe work -- which is in any case out of copyright. The word phony/phoney" was in use before Catcher in the Rye. And secondary meaning, in the form of popular American cliches, does not make a copyright work in any sense generic.

  4. What about "Happy birthday to you"? Still in copyright according to a program on BBC Radio 4 a few years ago.

  5. "What about "Happy birthday to you"? Still in copyright according to a program on BBC Radio 4 a few years ago."

    The actual song is under copyright, not the phrase.

  6. I think the prime example would have to be the "Amen Break", a six second section of an obscure b-side track from 1963 that has spawned entire genres of music. If the copyright in this sound recording was enforced, then the music industry would be decimated. I highly recommend this 18 minute documentary (but some of the language in the gangster rap tracks features may raise eyebrows if listened to at work): http://www.youtube.com/watch?v=5SaFTm2bcac - it's quite an eye-opener about the sheer quantity of copyright infringement that happens in the music industry outside of file sharing.

  7. Clearly I'm a philistine - I've never come across the phrase "The voice of Jacob, the hands of Esau"!

  8. Interesting set of examples. I assume you're aware that the chord structure of Hotel California has some, shall we say, quite interesting similarities to an earlier track by Jethro Tull who the Eagles had just been supporting on tour at the time. And that there are acknowledged similarities between My Way and David Bowie's Life on Mars? (various other tracks also harmonise quite closely, as entertainingly demonstrated by the Ukulele Orchestra of Great Britain from about halfway through this clip Is this a Treasure Hunt? Is there a copyright/borrowing association we're meant to make with all of the other examples too?

    As regards the law, surely the relevant point in the UK (which would presumably also apply to the many many more references and allusions that have entered the language as touchstones, recited in Brewer's Dictionary or a good Dictionary of Quotations) is that merely referencing such a concept or line (or "meme", if you must, without needing to seek permission from Richard Dawkins) is not in general going to be considered a significant taking. This surely is the important point, rather than whether any original distinctiveness has become genericised. In the States of course, as well as that as a factor, one also has the point that the re-use is likely to be transformative, and the underlying point that copyright is explicitly there to extend and enrich culture, and attempting to take phrases and ideas out of the language would be an unwarranted interference with 1st Amendment free-speech rights. But either way, I think we can safely describe certain people as "Walter Mitty-esque" without having to worry about the estate of James Thurber; or consider that the European patent court proposals should be "nuked from orbit -- it's the only way to be sure", without having to get James Cameron's permission first.

    Of course since 20 years ago the Israelis have legislated for U.S.-style fair-use (now persistently under debate in Europe as well?), so it's possible to wonder whether the Donald Duck case would still be decided the same way. But it would seem a much bigger taking of original expression than the rather general phrases or ideas you've given above.

  9. And let's not forget that My Way was an adaptation of an original work by the French artist Claude François...

  10. 'Technical inexactitude' is surely not a copyright infringement - Sir Winston Churchill's phrase was 'terminological inexactitude'


  11. ex-examiner said: "What about "Happy birthday
    to you"? Still in copyright according to a program on BBC Radio 4 a few years ago."
    What the BBC doesn't know (or worse, forgot) is that because the UK followed the Berne Convention Comparison of Terms from 1912-1956 under the Copyright Act 1911, when the melody entered the US Public Domain on 01/01/1922, it did the same here. So no copyright anymore.
    @ Anonymous: I could say 'terminological inexactitude anywhere I like till I'm blue in the face and not commit an IP crime. If Churchill had trademarked the phrase, however...


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