Is it legal to steal a title?
Yesterday I alluded to the black fading to gray area of the copyrightability of short phrases like titles and slogans. In general, such things are not protected by copyright, but if the correct alignment of stars occurs, on certain days of years with the proper moon phases, they are protected.
Okay, it’s not really that mysterious, but sometimes short phrases are protected by copyright, and it depends on the particular circumstances of the phrase and the use in question. There is not black and white rule that will tell you in advance whether a particular use is okay.
What it comes down to is a few key factors, most of which are subjective judgment calls. If the phrase is truly unique or inordinately clever, such that it is unlikely someone else would come up with it independently, or if the phrase is closely associated with particular famous characters, then the courts are more likely to find a copyright infringement IF the phrase is being used for commercial gain for the person or company using the phrase.
[Note: it is a common misconception that as long as you are not making money off of using a copyrighted work, then it is okay to use it. That is NOT true; but in the case of short phrases it is mostly true. Don’t you just love the law?]
The clearest example is from a California district court case in 1979, where the writer of a short slogan that was used on a greeting card sued a t-shirt manufacturer that was printing the same slogan on t-shirts for sale. The court said that the phrase, “I may not be totally perfect, but parts of me are excellent,” had met a higher standard of originality, uniqueness, and cleverness, and therefore was the type of work intended to be covered by copyright laws – no matter that it was only one sentence.
Keep in mind that some slogans and very short phrases are protected under trademark laws. Trademark overlaps somewhat with copyright, but is an entirely different legal analysis. Trademark does not protect slogans from all other uses, but it will prohibit a use that causes confusion in the mind of consumers, such as when two competing stores use the same name. Stores that serve completely different markets may be legally be able to use the same name, however.
If it sounds confusing, it’s because it certainly can be. But most confusion can be avoided by doing two things – asking permission, and staying away from things that feel like “stealing.”
March 5th, 2007 at 7:41 am
I think a lot of copyright greyness comes from the differing requirements of various media and genre. After all, fair use allows use of far more of a novel than a poem–and if your entire work is one sentence long, any unique phrase of it, let alone the whole thing, is integral. Equally, using an eye cut out of a photo of a model in a collage is fair use, but not the whole image of the model, even though you drop out the background, IIRC. The whole collage/scratch/montage snippet issue would be good for you to cover some time. Again, music, t-shirts, paintings, movies, novels, have different approaches to copyright, and I don’t think the lawmakers could cover them all well unless we set up very specific separate copyright acts. They’re trying to make everything fit under an umbrella law that can be summed up in a hundred words or less.
Titles, as opposed to very short prose works like the card/t-shirt problem, have a much harder time getting copyrighted. (There are aficionados of 50-word “postcard fiction” stories.)
Take a title like “Lord of the Rings.” We all know the Tolkien work. But there was also a book sold by Ringling Bros. etc. about circus great Gunther Gebel-Williams with that title–which you have to admit is appropriate to him, if you consider the alternate use of “rings,” though I’ll bet anything they only thought of it because of Tolkien’s invention, and thought it was clever to reapply it.
We could use up a lot of space listing “re-used song titles”–ones where two or more bands/writers have brought out very different songs with the same title. I’m astonished how often “Kiss of Death” comes up. I don’t think they get protected.
Then there’s songs that use movie titles. You can’t tell me that a 1980s song wasn’t aware of a 1950s movie with major stars that are required viewing by a cinema major. No one seems to fuss.
Now, is that the main point? If no one sues, you’re okay? The owners of old movies might consider it publicity positive to create a name recognition, however lacking in actual connection.
But I wouldn’t want to try to publish an adult’s historical novel about the Cathars called ‘The Goblet of Fire.’ I’d expect JKR’s lawyers to be on my doorstep immediately, though there wasn’t a wizard in sight. Need I worry about that, though? It’s a novel, but it’s not a juvvy, it’s not contemporary, it’s not a fantasy. Is moving out of genre sufficient?
Of course, then there’s the question of common sources. Shakespeare and the King James Bible have always been a hunting ground for titles. What if I had genuinely never heard of the movie “The High and the Mighty” (KJB snippet)? Just because it’s the ancestor of all “Airport” movies doesn’t mean it’s much known by younger people. And as I only just found out, watching it for the first time, it’s based on a novel of the name. So would I be liable to suit if I used it for my new novel? Would my publisher’s legal department just quash it to stay out of the grey zone? What if I were self-publishing or bringing it out with a small press that didn’t have a legal department and didn’t recognize it as a title of an earlier novel? Would I be safe because of common source, able to just say it’s legal and I don’t have to justify its use by, say, proving it applies equally well or better to my work? I mean, it’s pretty shaky to apply it to a commercial flight that goes bad.
It’s kind of astonishing how many novels have been called ‘Triple Cross.’ Do a LoC search and the one I have in my library won’t even come up. Neither did one that I saw in passing last year. (Yes, the LoC catalog online is far from a complete resource of all books published, even in the US.)
So is this all really =stealing= a title or in many cases just re-using them? (I know, stealing is a stronger word, therefore catchier in a blog title.)