Summary
The titles of standalone creative works do not qualify for copyright or trademark registration, however the title of a serialized work may qualify for a trademark registration. That said, there are effective strategies to protect the title of a single creative work.
Titles play a pivotal role in capturing attention and setting the tone. It’s therefore common for creators to consider protecting the title of their work. But can you?
The Rule under Copyright Law
Copyright does not protect titles of creative works. According to regulations promulgated by the Copyright Office, “[w]ords and short phrases such as names, titles, and slogans” are not subject to copyright.
While copyright law gives an author of a creative work the exclusive right to reproduce, publish, perform, and display their work, that protection does not extend to the work’s title.
The Rule under Trademark Law
The titles of standalone creative works do not qualify for trademark registration. The general rule according to the United States Patent and Trademark Office (USPTO) is that unless the title of a creative work is part of a series, the title of a single creative work is not recognized as a trademark and is therefore unregistrable.
Why is this the rule? A fundamental tenet of trademark law is that a mark must identify and distinguish the source of goods or services. The USPTO may refuse registration of marks that solely function to identify a single creative work under the supposed principle that a single creative work doesn’t fulfill this role. According to the USPTO, when a series of creative works are produced and released under a specific title, the likelihood of the title signifying its source increases.
What is a “Single Creative Work”?
A “Single Creative Work” is a work where the content does not change, no matter the form of the work (e.g. printed, recorded, electronic, live, on stage, etc.). Examples would include a single non-serialized book, song, ring tone, movie, opera, and stage play.
What is a Series of Creative Works?
Creative works are not “single creative works” if they are part of a series or are a type of work in which the content changes with each issue or performance. Examples include periodically issued publications such as magazines, newsletters, comic books, comic strips, and printed classroom materials, podcasts, movie and books series, and television shows.
Strategies to Protect the Title of a Single Creative Work
There are indirect ways to obtain trademark protection for the title of a single creative work. For example, the title could be used in connection with related goods or services like merchandise, swag, newsletters, handouts, journals, mugs, and other items used in connection with promoting the creative work. If the creator is doing appearances and signings, or talking on the subject matter of the work itself (such as for non-fiction works), these specific activities could also form the basis for a trademark registration. Depending on how closely related the use of the mark is to the creative work, it is possible to enforce the mark against others trying to use it as a creative title.
There are also ways to protect the title of a single creative work that do not require trademark ownership if someone uses the title in a way to confuse the public into thinking that their work and the original work are somehow related. Claims could be brought alleging unfair competition, false designation of origin, false association and endorsement, deceptive advertising, and others.
Practical Strategies
Before using a title for a work (especially for a series), it’s advisable to obtain a title availability report (or start with a Google search) to check for any existing titles that might be similar or identical. This should help avoid potential conflicts and the need to retitle your work in the future and, particularly for a series, avoid potential exposure for trademark infringement and unfair competition.
