
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          September 21, 1995    [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                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                                         -2-                                          2            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                                         -3-                                          3            "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                                         -4-                                          4            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.                      ________                                         -5-                                          5
