Are.quotes.protected?

Everyone tries to do their part during the corona crisis, each in their own way. For example, RUMAG is a marketing company that focuses on young people and sells T-shirts with satirical quotes. They decided to offer a special corona collection. The profits would go to the Red Cross. In the collection were mouth masks with ‘krijg de corona’ (~ get the corona) or T-shirts with the text “IK.GELOOF.IN.JOU.EN.MIJ.” (~ I.BELIEVE.IN.YOU.AND.ME.). RUMAG received so much criticism it made the CEO resign.

The lyrics “ik geloof in jou en mij” (~ I believe in you and me) might not sound so familiar to our English readers. But it refers to the song ‘Avond’ (~ Evening) by the Dutch musician Boudewijn de Groot (written by Lennaert Nijgh). The quote on the T-shirts is a part of the lyrics: “maar ik geloof, ik geloof, ik geloof, ik geloof in jou en mij” (~ but I believe, I believe, I believe, I believe in you and me). This begs the question: is this text protected by copyright and are others allowed to (partly) reproduce it?

Quotes_protected

Criticism on RUMAG 

RUMAG makes T-shirts, coffee mugs, doormats, balloons, … with satirical quotes in its characteristic layout. White letters on a black background with the spaces replaced by dots. These quotes often do not originate from RUMAG, but from others or from a translation into Dutch of already existing statements in English. Can RUMAG do this or are quotes protected by copyright?

In the program “Zondag met Lubach” (a Dutch talk show) the presentator Arjen Lubach disapproves of this in every way possible. He accuses RUMAG of plagiarism and trying to profit from the Coronacrisis. A few years ago, RUMAG has also been criticised in Belgium for ‘stealing’ the “IK.WIL.NAAR.HUIS-slogan” (~ I.WANT.TO.GO.HOME) by Belgian designer Karen François (known for the quote “Aladdin zonder d is ook ook Alain” ~ Aladdin without the D is called Alain). 

Copyright and quotes

Quotes can be protected by copyright when two conditions are met:

1) the text has its own original character;

2) the text bears a personal stamp of the creator.

Ordinary or trivial works are not eligible for copyright protection. In the Infopaq judgment, the ECJ has long held that sentences may be protected by copyright as long as it is original and creative. Quotes can therefore be protected if they contain a certain amount of creativity on the part of the creator. 

Sentences are only protected if they are ‘exceptionally original’ or ‘distinctly creative’. In principle this boils down to: the more choices the author made, the more creativity there is. An author makes fewer choices for short sentences and therefore less creativity can arise. This does not mean that short sentences are ruled out without a doubt from copyright protection. It simply cannot be about sentences that everyone could have thought of. 

It will come as no surprise that short everyday sentences commonly used in certain situations do not show any form of creativity. Thus, they do not enjoy copyright protection. This seems to be the case for T-shirts with the text ”ik wil naar huis” (~ I want to go home). This is a short sentence that in itself is obvious to everyone and will not be protected by copyright.

With regard to RUMAG’s T-shirts with the text “IK.GELOOF.IN.JOU.EN.MIJ.” (~ I.BELIEVE.IN.YOU.AND.ME) printed upon them, it is both defensible and disputable that it is protected by copyright. It is defensible because in the past it was assumed that the song title “Hoe sterk is de eenzame fietser” (~ How strong is the lonely cyclist) (also written by Lennaert Nijgh) is protected by copyright. On the other hand, the copyright protection of “Ik geloof in jou en mij” (~ I believe in you and me) is questionable. It is only a part of the lyrics and it’s an everyday sentence that anyone could have thought of. 

Clearly, you’ll have to access each individual quote in order to know whether it is protected by copyright.

Is there an infringement by RUMAG?

A copyright infringement exists when a copyrighted work is made public by someone without the author’s consent. In the case of RUMAG, you have to check each quote whether it is protected by copyright. Then you’ll need to check whether the work has been reproduced without permission.

There are exceptions to the prohibition of reproducing existing copyrighted works. For example, it is permitted to copy copyrighted works, such as a quote, and to print them on a T-shirt, if they are intended for private use only. Of course, this exception did not apply to RUMAG who put the T-shirts up for sale via their website in support of the Red Cross. 

In addition, it is allowed to cite texts. However, it is only allowed if the copied text is used for criticism or review. This is because of the freedom of expression and the right to criticize. Furthermore, it must be in a serious context, such as an announcement, an assessment or a scholarly treatise. An acknowledgement of the source is also mandatory. It is clear that RUMAG’s satirical quotes do not fall under this exception. 

As a final observation, we mention the parody as an exception. (Our blog article on parody in the world of fashion might also be relevant to you, regrettably only available in Dutch for now) This boils down to the fact that a copy of a copyright-protected work is allowed when it has a humorous intention. It also has to take on a different meaning than the original work without creating any confusion. It seems very unlikely that the RUMAG case would fall under this exception. The mere copying of existing texts and shaping them in their characteristic layout (white letters against a black background with dots instead of spaces) seems to contain little humour and does not bring any new context. Certainly not when the quotes are linked to a commercial aspect, namely the sale of T-shirts and office supplies.

Some.quotes.are.protected.

It is not self-evident that quotes can benefit from copyright protection. It often contains a lack of creativity on the part of the creator and belongs to everyday phrases that anyone could have thought of. This is one of the reasons why RUMAG keeps getting away with using other people’s quotes. Their tactic is that they often don’t use the full quotes, but only part of them. 

If a quote is protected by copyright, the infringer will be able to defend himself by invoking the exception: the citation or the parody. Neither of these are easily accepted.

In the case of the T-shirts ‘IK.GELOOF.IN.JOU.EN.MIJ.’ (~ I.BELIEVE.IN.YOU.AND.ME) there might be some doubt whether this is copyright-protected. One thing is certain:  the corona collection is no longer available at RUMAG, perhaps because of the criticism they received in the Dutch talk show.

Any questions about copyright law or this article?

Feel free to contact Jenny Cheung (jenny@siriuslegal.be) or Bart Van den Brande (bart@siriuslegal.be).