Too Small to Ignore: Copyright Protection in Minor Literary Works

Abstract

This essay discusses the place of copyright in minor literary work. The term “minor literary work” refers to written creations that are very short in length. It includes advertising slogans and phrases, titles, invented words and names. The common legal position is that such works are too insubstantial to qualify for copyright protection. In 2008, the Auckland High Court decision in Sunlec International Pty Ltd v Electropar Ltd (“Sunlec v Electropar) contradicted this commonly held position by allowing copyright to subsist in a rather mundane advertising slogan. This essay contends that this was a concerning decision. It may provide precedent for a new expansion of copyright law to protect not only slogans, but other minor literary works of little significance. This essay takes the position that copyright should not subsist in minor literary work. In addition to explaining the policy reasons behind this argument, this essay also assesses the Sunlec v Electropar decision in detail. The statutory thresholds necessary for granting copyright are discussed, and recommendations are made as to how these thresholds should be interpreted and applied in future (in cases where minor literary work is at issue). This essay also considers the alternative protection mechanisms of registered trade mark and the tort of passing off. It is warned that if copyright is allowed to subsist in minor literary work, the overlap between these doctrines will be needlessly exacerbated.