Wednesday, September 21, 2005

Small Beauty

The saying "Less is More" was popularized by architect Mies van der Rohe (but found in an 1855 poem by Robert Browning), and scoffed at by architect Robert Venturi, who quipped "Less is a Bore." The general legal doctrine of de minimis non curat lex bars copyright protection where the material for which protection is claimed fails to embody a minimal quantum of creative authorship. In applying this doctrine, the Copyright Office refuses registration for “words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” Last week, Judge Sprizzo of the SDNY upheld the Office’s refusal to register the Coach luggage letter C design.

Too much can be made of the term “short” though: since originality involves qualitative as well as quantitative considerations, no quantitative guidelines can be given for identifying the line between not enough and just enough creativity. In addition to obvious examples such as haiku with its concentrated poetic pattern of 5-7-5 morea (roughly syllables), brevity may be a sign of greater, rather than less, creativity. Anton Webern, who along with his mentor Arnold Schoenbeg and friend Alban Berg are frequently referred to as the “Second Viennese School”, composed severely spare music. Webern’s philosophy, set forth in a monograph “The Path to New Music,” is best seen in his definition of Art as “the ability to present an idea in its simplest, clearest, that means most comprehensible form.” This didn’t mean Webern’s ideas were simple – his music is the most rigorous devoted to Schoenberg’s 12-tone approach – rather, it means that Webern aimed for transparency in the expression of his idea. For example, Webern’s Six Bagatelles for String Quartet (1911/1913), each take up only a single page, and when performed in their entirety, last barely three minutes. Schoenberg wrote a preface to score that sums the matter up well:

Though the brevity of these pieces is a persuasive advocate for them, on the other hand that very brevity itself requires an advocate. Consider what moderation is required to express oneself so briefly. You can stretch every glance out in a poem, every sigh into a novel. But to express a novel in a single gesture, a joy in a breath – such concentration can only be present in proportion to the absence of self-pity.

Before we dismiss out of hand brief works, we should be sure about their nature.


Anonymous said...

I wonder how the Copyright Office would handle Cloud Gate, Chicago's beloved Bean. That's a really, really good test case, IMO, especially since there has already been some rumblings about its IP protection.

The artist (Anish Kapoor) has prohibited 3-dimensional reproductions from being made, which is the only reason said reproduction is not holding down papers in on my desk right now.

William Patry said...

Tom: I think Cloud Gate is easily registrable, although i didn;t see any registration for it. Chicago does have a work of sculpture that went into the public domain for lack of notice, the Chicago Picasso.

Anonymous said...


I think it's easily registerable too, but looking over the Copyright Office "Appeals" lately, they seem to have a different idea than I do. Based on the Office's reasoning out of the Compendium, I think it can easily be rejected.

I know you've blogged on this in the past, but I think the Appeals process is badly flawed. So few Examiner decisions get overturned, I think, because they don't want to set precedent, even if it is non-binding.

Not only that, but I'm not sure who has the burden of proof in showing orginality (or non-Originality). If the burden is on the applicant to show it's work is "original," it's a pretty high hurdle to get over.