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David L. Duncan, Esq. Law Offices of David L. Duncan Furthermore, any attributable authorship beyond these common words and phrases is de minimis and further constrained by merger considerations. When there is only one way, or a limited number of ways, to convey the idea that the author seeks to express, the author’s expression cannot be protected under copyright law because that would result in a monopoly over the idea itself and prevent others from using that same idea in other works. See 1, § 2.18(C)(2) (2014). The Second Request asserts that the epigram meets the low threshold of creativity as it is a “creative and artistic expression of Ms. Caldwell’s thoughts about life in society” and that “there are many ways [this] concept could be expressed.” Second Request at 8. A literature scan does indeed reveal discourse and musings on the ideas conveyed in the epigram, much of which predates the epigram. However, the discourse also demonstrates that there are a limited number of ways the idea may be expressed. Writings often uses similar sentence structure and words, including act, doubt, profit, self, society, and rebellious, as presented in the epigram. The Office cannot register a claim based on the standard expressions that naturally flow from the idea of a work of authorship. § 313.4(B); see also Perma Greetings, Inc v. Russ Berrie & Co., Inc., 598 F. Supp. 445, 448 (E.D. Mo 1984) (stating that phrases and expressions conveying an idea that is typically expressed in a limited number of stereotypical fashions are not subject to copyright protection). Thus, merger considerations limit registration of the epigram.

The Second Request makes two additional arguments in favor of registration, neither of which alters the Board’s conclusion. First, Caldwell cites three cases in which courts found short phrases protectable. In two of these cases, the short phrases discussed by the court were portions of a larger registered work, unlike the single sentence presented for registration here. See Greene v. Ablon, 794 F.3d 133, 160 (1st Cir. 2015) (The court noted that, in context, the five-word phrase “your explanation guides your intervention” is substantial and creative enough to warrant copyright protection as the phrase’s creativity derives in part from its “succinct articulation of a complex concept,” thereby connecting the creativity of the phrase to the expressions conveyed in the larger work.); Applied Innovations, Inc. v. Regents of Univ. of Minn., 876 F.2d 626, 635 (8th Cir. 1989) (finding test statements such as “I am a good mixer” and “No one seems to understand me” to satisfy the minimal standard for original works of authorship, “at least within the context of the administration of the MMPI” exam (emphasis added)). Finding the copying of a sentence originating in a larger work actionable does not mean that the sentence itself is registerable. In both of these cases, the courts made no finding that the phrases in isolation—without context—would be deemed sufficiently creative to warrant registration. In the third case, a brief opinion comprising three pages, the three epigrams at issue had been issued registration certificates by the Copyright Office. BRILLIANT v. W. B. Prods., No. 79-cv-1893, 1979 U.S. Dist. LEXIS 9092, at *1 (C.D. Cal. Oct. 17, 1979) (providing “Registration Certificate” numbers for each work). Decisions to register a work have no precedential value, and are non-binding upon the Office when examining other applications, and