Writers Picking Titles

The Indianapolis Business Journal and publications around the country picked up the story of author Emily Schultz and her Tumblr blog on spending money from mistaken online purchases of her novel Joyland. Mistaken because people apparently thought they were buying a later book with an identical title by another author. The other author is Stephen King.

It’s a nice story of how the household name author and the less well known author are handling the confusion gracefully and with humor. If you look at the covers of the two books, there is a lesson here about how carefully people read before they hit BUY.

It’s also a good excuse to talk about the intellectual property law behind the story. Titles of books and just about anything else protected by copyright law have their own surprising niche. Surprising because copyright protects the book but not its title.

Confusion about owning rights to a title is so frequent the Copyright Office devoted one of its helpful brochures to the subject. Its Circular 34 is entitled Copyright Protection Not Available for Names, Titles, or Short Phrases. The name says it all. You can read and download it at www.copyright.gov.

It doesn’t matter if your title is unique. It doesn’t matter if your title is identical to one of the most famous books or songs ever written. There is no copyright protection for a title.

But if a title becomes a brand name for more than the copyrighted work, it can be protected under trademark and unfair competition law. The title can become a trademark for movies, games, toys, and even a series of books.

If J. K. Rowling had only written Harry Potter and the Sorcerer’s (or Philosopher’s) Stone, the name Harry Potter might have relatively little IP protection. The same would be true if The Secret of the Old Clock first published in 1930 under the pseudonym Carolyn Keene had been all they wrote. But then came The Hidden Staircase and the Nancy Drew franchise continuing in various formats today.

So title searches are done where serious investments are about to be made in a creative project that otherwise comes under copyright law. Similar or identical titles of all kinds of works are identified to see what else they turned into that could give others rights in the title being considered for the project.

Creative projects often can’t afford formal title searches, but they can use no cost searches online and at the Copyright and Trademark Offices to get an idea of what’s out there. If you fall in love with a title and are determined to use it no matter what, get some good advice.

Meanwhile, if you want to write a song or story with the title I Love You, an online title search at the Copyright Office will show you 9976 results. There might be room for one more.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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