100% That Art Thief: Why (Some) Short Phrases Should Be Copyrightable

By Joseph-Michael Mckay

Whether you love her or hate her, you have probably heard of Lizzo’s hit single Truth Hurts[1] which features the now famous line “I just took a DNA test turns out I’m 100% that [one person everyone envies and wants to be.][2]” The song set a billboard chart record for the longest running billboard number one song by a female rapper.[3] Recently, the lyric became an issue in a lawsuit between Lizzo and former collaborators it was used in an earlier song called Healthy.[4]

The plaintiffs argued that they were joint authors of Truth Hurts because during the recording of Healthy they saw a meme and insisted it be worked into the lyrics.[5] But that meme was actually a tweet from singer songwriter Mina Lioness which read “I did a DNA test and found out I’m 100% That Bitch.”[6] Mina was less than thrilled about her creativity and comedy being used without credit.[7] After years of struggle, Lizzo finally gave song writing credit to Mina,[8] however there is no indication that she is receiving any royalties. Meanwhile Lizzo is currently selling merchandise with the phrase, and is now in the process of trademarking “100% that bitch.”[9]

Under the current law, Mina’s original tweet would most likely not be copyrightable because it is a short phrase.[10] This long-standing rule overlaps with the merger doctrine, the idea being that short phrases essentially merge with the idea they express, and ideas are not copyrightable.[11] This rule makes sense for many phrases, but not all; it uses a hatchet when it ought to use a scalpel.        

A short phrase does not necessarily merge with the idea it expresses, nor does it necessarily lack creativity or originality. Take the famous six-word short story “for sale, baby shoes, never worn.”[12] The idea behind this very short story is not selling unused infant wear. The idea is the tragedy of a baby’s death revealed through the sale of clothes. There are several other ways to express this idea, this expression just happens to do so very concisely.

What the legal doctrine fails to account for is the originality and creativity required to express a complex idea with a short phrase. A single joke may be short, but the ideas they express do not necessarily merge with the joke itself, and the expression is what makes the joke valuable. Take the Dimitri Martin joke “Saying ‘I’m sorry’ is the same as saying ‘I apologize.’ Except at a funeral.”[13] The idea expressed is that the two words mean almost the same thing, but one suggests fault, and is therefore awkward to utter at a funeral. But the unique expression by Martin makes us laugh, while the other does not. And that is what is being stolen when one steals certain phrases such as jokes.

We can apply this to Mina’s tweet. The narrowest version of the idea: Somehow being “that bitch” is encoded in Mina’s DNA and she confirmed this through testing. But Mina’s expression of this idea is what gave it the aesthetic appeal to end up as one of the most recognized lyrics in the world. The differences between my expression of the idea and her expression of the idea should be obvious. They encode the same information, but Mina’s tweet is a comedic and aesthetic appeal due to her creative contribution. The fact that Lizzo and her former partners liked the phrase so much that they worked it into the song with minimal alterations is further evidence of its creativity and aesthetic value.

Short phrases such as Mina’s tweet and other jokes should, therefore, enjoy some copyright protection. Critics may point out that this would make it very difficult for people to know when they are infringing on a work and therefore disincentivize creation. But not only can this be cured with only granting thin copyright protection, other remedies such as compulsory licensing agreements can be used to ensure credit is given and money makes its way to the creator without completely restricting the use of these phrases by other artists. Lizzo continues to profit from the creative expression of Mina Lioness, yet under the current law Mina is not legally entitled to share in those profits.

[1] Lizzo Music, Lizzo-Truth Hurts (Official Video), YouTube (Sept. 25, 2017), https://www.youtube.com/watch?v=AfU411FQjFA.

[2] Jlvwii, THAT Bitch, Urban Dictionary (Feb. 25, 2018), https://www.urbandictionary.com/define.php?term=THAT%20bitch.

[3] Kayla Song, Lizzo Sets Billboard Chart Record With Number One Hit “Truth Hurts”, The Current (Sept. 25, 2019), https://www.thecurrent.org/feature/2019/09/25/lizzo-sets-billboard-chart-record-with-number-one-hit-truth-hurts.

[4] Jefferson v. Raisen, 2020 U.S. Dist. LEXIS 197183, 2020 WL 6440034 at *1 (C.D. Cal., Aug. 14, 2020).

[5] Id.

[6] Audra Schroeder, Accusations that Lizzo Stole a Tweet for “Truth Hurts” Resurface, Daily Dot (Aug. 29, 2019), https://www.dailydot.com/upstream/lizzo-accusations-truth-hurts-tweet/.

[7] See Ruchira Sharma, Lizzo Truth Hurts Plagiarism Row Explained, After Mina Lioness Receives Lyrics Credit From Meme, iNews (Oct. 24, 2019), https://inews.co.uk/news/lizzo-truth-hurts-plagiraism-row-meme-mina-lioness-lyrics-meme-credit-354447.

[8] Sharine Taylor, The Singer-Songwriter Getting a Writing Credit For Lizzo’s “Truth Hurts” Speaks Out, Fader (Oct. 28, 2019), https://www.thefader.com/2019/10/28/mina-lioness-lizzo-song-writer-truth-hurts-credit-interview.

[9] Natasha Mulenga, Lizzo is Trademarking “100% That Bitch” But Did She Take That Phrase from Another Black Woman?, gal-dem (Sept. 3, 2019), https://gal-dem.com/lizzo-is-trademarking-100-that-bitch-but-did-she-take-the-phrase-from-another-black-woman/.

[10] 37 C.F.R. § 202.1(a) (1992) (this section lists materials not subject to copyright, such as “words and short phrases such as names, titles, and slogans”).

[11] Pamela Samuelson, Reconceptualizing Copyright’s Merger Doctrine Part III, 63 J. Copyright Soc’y U.S.A. 417453-54 (2016).

[12] Nikola Budanovic, “Tracing the History of the shortest story ever Told”,Vintage News (Sept. 24, 2017), https://www.thevintagenews.com/2017/09/24/for-sale-baby-shoes-never-worn-tracing-the-history-of-the-shortest-story-ever-told/?firefox=1 (Ironically the story has been misattributed to Earnest Hemmingway).

[13] Demitri Martin-Topic, Sames and Opposites, YouTube(Oct. 18, 2021), https://www.youtube.com/watch?v=s6HJFwXvCpY.