Maria Crimi Speth, Esq., Guest Author
The most frequent question I am asked when I teach intellectual property to authors is whether the author can protect the title of his book. Unfortunately, book titles may be impossible to protect. The areas of intellectual property that are implicated are copyrights and trademarks.
Since copyrights protect the content of your book, you might think that copyright law also protects the title. It is, after all, part of the content. The problem is that copyright law only covers works that have enough originality to be protected. One-line phrases and quotes do not enjoy the protection of copyright law. You might argue that the book as a whole is a creative work and the title is a part of the book. Well, that is true. However, under the fair-use doctrine, if I use a very small portion of your book, such as a one-line quote, I probably have not infringed your copyright. Since the title is a tiny fraction of the whole book, it enjoys no protection when separated from the whole. Courts and the copyright office unanimously agree that copyright law does not protect book titles.
There is, however, another area of intellectual property that must be considered. A word or phrase that indicates a source of a product is a trademark and is entitled to protection under trademark law. The question then becomes whether the title of the book indicates its source. The answer is that the title of a single creative work does not indicate the source and is not protected under trademark law. The title of a series (two or more) of creative works can, however, be a trademark because once there is a series, the common title does indicate the source. The most common examples of book titles that enjoy trademark protection are Chicken Soup for the Soul® and the For Dummies® series.
Your book series title is also permitted to be registered as a trademark with the United States Patent and Trademark Office. The name of your book series is entitled to common-law trademark protection based on your first use. No registration is necessary to create common-law rights. However, by registering a trademark with the U.S. Patent and Trademark Office, you are considered to be constructively using that trademark throughout the United States. It is usually a good idea to register the title of your book series with the United States Patent and Trademark Office in order to get nationwide protection and other rights that come along with federal registration. While electronic filing of the trademark application is available to the public, the process can be tricky. It is wise to enlist the help of an attorney in filing for the trademark registration.
Because book series titles can be trademarks and because books are related to other services and product names that have trademark protection, you should consider the trademark rights of others before choosing a title for your book. Before settling on a title for your book, you should perform several searches. First, use Internet search engines to determine whether your prospective title is being used and, if so, how it is being used. If you find a series of books with that title, you will want to go back to the drawing board and find a new name.
Also, if you find related products, such as seminars or a movie, using that name or a similar name, you probably want to avoid that title. After your Internet search, you can also search the United States Patent and Trademark Office at www.uspto.gov. At that Web site, you can search your proposed title. If your preliminary searches uncover no results, then your final step is to hire a lawyer or a trademark search company to do a professional search. This step is important. I always advise my clients to do their own searches first; yet I often find conflicts that are serious enough to warrant not using the proposed trademark.
There is another aspect of trademark law that you should consider if you are writing a series of books: trade dress. Trade dress is the look of the product. If you have a single book with a great book cover, you have copyright protection over the design of that cover. If you have a series of books with a common cover design, you have copyright protection but you may also have trade dress protection over that cover design. Consider the black-and-yellow color scheme of the Dummy Series®. The design has acquired what is known as “secondary meaning.” In other words, even before reading the actual title, the consumer recognizes the book as being part of the series because of its distinctive cover design.
In summary, while the bad news is that you cannot protect the title of a single creative work, the good news is that you can protect both the title and the cover design of a series of books that share a common title and cover design.
Copyright © 2012. Maria Crimi Speth. Maria Crimi Speth is an intellectual property attorney at the Phoenix, Arizona law firm of Jaburg Wilk. She has expertise in copyright law, trademark law, Internet law and intellectual property litigation. Maria is the author of the book of Protect Your Writings: A Legal Guide for Authors. Learn more about Maria at www.jaburgwilk.com.
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