File this one under “IP Issues Where You Least Expect Them.”

When 33 Chilean miners were trapped underground, they sent notice of their survival the only way they could. Jose Ojeda marked a ripped piece of paper with the words: “Estamos bien en el refugio los 33” (We are okay in the refuge, the 33) and attached it to a probe sent into the collapsed mine.

The note brought hope to their terrified families and renewed efforts to free the trapped men.  And we all know how the story ends.    What we may not know is that there’s an interesting copyright issue here.

Following the harrowing rescue, the Chilean President presented copies of the note to foreign dignitaries. As part of the seemingly inevitable marketing juggernaut that immediately followed, millions of people around the world have purchased mugs, t-shirts, and keychains with the oft repeated phrase.

Hoping to stop the abuse of Ojeda’s phrase, a famed Chilean writer, Pablo Huneeus, sought an official copyright registration of the piece.

Under United States law, copyright is effective at the moment of creation; however, it is easier to enforce legal rights once an official registration has been granted.

Although the note brought hope to millions, could it be considered copyrightable subject matter for purpose of United States law?

Under Chilean copyright law, protection is offered for “los autores de obras de la inteligencia en los dominios literarios, artísticos y científicos cualquiera que sea su forma de expresión”. (“authors of works of intelligence in the literary, artistic, and scientific dominions, whatever the form of expression may be”)

As both Chile and the United States are signatories to TRIPS, an international trade agreement protecting intellectual property rights, the Chilean copyright is enforceable in the United States. In fact, both countries are required by TRIPS to extend national treatment (where one nation treats a non-native copyright holder as well if not better than national copyright holders) to the copyright holders of fellow Member states.

American copyright law has a heightened standard for copyright requiring both originality and fixation of the work. However, TRIPS incorporates the language of the Berne convention which defines a literary work as “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. This is certainly a “production” in the literary domain being a sentence written upon a piece of paper. Chilean law seems to obliquely reference a creativity or originality requirement through the language of “obras de la inteligencia”, but granting the copyright in this situation seems to undercut that possible reading.

Regardless, the question must be asked – how is a single sentence written with the intent to notify those above that the men below were still alive to be qualified as a creative expression of artistic intent?

Copyright, at least in the United States, is used to incentivize the production of creative works, and cannot be used to establish rights in a commerically-valuable phrase, something that’s a more appropriate task for trademark law.

Finally, thanks to Elliott & Davis law clerk, Kelly Miskowski for digging into some research and helping with Spanish translations for this post!

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