USCA1 Opinion
September 21, 1995 [NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
____________________
No. 95-1366
GILBERTO ARVELO,
Plaintiff, Appellant,
v.
AMERICAN INTERNATIONAL INSURANCE COMPANY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Celso E. Lopez and Peter John Porrata for appellant. ______________ __________________
Lisa E. Bhatia Gautier with whom Pinto-Lugo & Rivera was on ______________________ ___________________
brief for appellee.
____________________
____________________
Per curiam. The plaintiff Gilberto Arvelo brought __________
suit against the American International Insurance Co.
("AIIC"), claiming that AIIC committed copyright and
trademark infringement and engaged in unfair competition by
using the designation "Retail Plus" a label which the
parties stipulate was conceived by Arvelo as the title of
one of its insurance policies, without Arvelo's permission.
The district court granted summary judgment in favor of AIIC.
Arvelo appealed, but only with respect to the disposition of
his copyright claim. We affirm, largely on the basis of the
district court's opinion. See Arvelo v. American Int'l Ins. ___ ______ ___________________
Co., 875 F. Supp. 95, 95-101 (D.P.R. 1995). ___
We add the following. It is undisputed that it was
Arvelo who came up with the title "Retail Plus," that Arvelo
presented the idea to AIIC as part of a proposal for an
advertising campaign, that the proposal was rejected, and
that AIIC nevertheless used "Retail Plus" as the title for
one of its insurance policies without Arvelo's permission.
It is also undisputed that the only alleged copyright ____
infringement was AIIC's unauthorized use of the name "Retail
Plus" as the title of one of its insurance policies. There is
no contention that AIIC copied any other portion of Arvelo's
advertising campaign, which itself was copyrighted by Arvelo.
The dispositive issue, therefore, is whether the name "Retail
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Plus" standing alone is subject to federal copyright
protection. The answer is clearly no.
It is a basic proposition of copyright law that
mere words and short phrases, even if they occur in a
copyrighted work, do not themselves enjoy protection against
copying. See, e.g., Arica Institute, Inc. v. Palmer, 970 _________ ______________________ ______
F.2d 1067, 1072-73 (2d Cir. 1992) (single words and short
phrases in copyrighted text not copyrightable); Magic _____
Marketing, Inc. v. Mailing Servs. of Pittsburgh, Inc., 634 F. _______________ __________________________________
Supp. 769, 771-72 (W.D. Pa. 1986) (noting that even "colorful
descriptions, such as advertising slogans, are not accorded
copyright protection"). The non-copyrightability of titles ______
in particular has been authoritatively established. See ___
generally 1 Melville B. Nimmer & David Nimmer, Nimmer on _________ __________
Copyright 2.16, at 185-86 (1995 ed.) ("It is . . . clear, _________
as a matter of statutory construction by the courts (as well
as Copyright Office Regulations), that titles may not claim
statutory copyright." (footnotes omitted)). The Copyright
Office's own interpretive regulations explicitly embrace the
rule of non-copyrightability for names and titles. See 37 ___
C.F.R. 202.1(a) (1994) (listing as an example of non-
copyrightable material: "Words and short phrases such as
names, titles, and slogans . . . .").
We reject Arvelo's contention that the rule against
the copyrightability of titles does not apply here because
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"Retail Plus" was not the title of his copyrighted work (the ___
advertising campaign). Whether or not "Retail Plus" was the
title of his advertising proposal, it is clear that Arvelo
conceived of that name as the proposed title of AIIC's
insurance policy. In any event, the name "Retail Plus"
standing alone, whether viewed as a title or not, is simply
too insubstantial to qualify for federal copyright
protection. Cf. Alberto-Culver Co. v. Andrea Dumon, Inc., ___ ___________________ ___________________
466 F.2d 705, 711 (7th Cir. 1972) (Stevens, J.) (finding not
subject to copyright protection the commercial tag-line "the
most personal sort of deodorant," on ground that such text
"is merely a 'short phrase or expression' which hardly
qualifies as an 'appreciable amount of original text'"
(footnote omitted)); Kitchens of Sara Lee, Inc. v. Nifty _____________________________ _____
Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959) ("Brand names, ____________
trade names, slogans, and other short phrases or expressions
cannot be copyrighted, even if they are distinctively
arranged or printed."). We add that Arvelo's assertion that
he put a substantial amount of effort into devising the name
"Retail Plus" is immaterial to the question of
copyrightability. See Feist Publications, Inc. v. Rural ___ __________________________ _____
Telephone Serv. Co., 499 U.S. 340, 354-61 (1991) (rejecting ____________________
the notion that copyright protection can be obtained merely
through the "sweat of the brow"). It follows that AIIC could
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not have committed copyright infringement by using the label
"Retail Plus" as the title of one of its insurance policies.
Finally, we reject Arvelo's claim that the district
court erred in denying his post-judgment motion to amend its
opinion with respect to various factual particulars, as none
of the proposed amendments has any material bearing on the
merits of Arvelo's copyright claim.
Affirmed. ________
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