Bulletproof Your Title

If you are an author, or you want to be an author, you need to learn about the business side of writing. You need to know there are legal implications of publishing your work.

Do you know about “fair use” and about words or phrases that may be trademarked?

Fair Use

In U.S. Copyright Law, the doctrine of Fair Use means brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.

Under U.S. Copyright Law, a song title cannot be copyrighted. That’s why you see so many book titles that bear the title of very popular songs.

Copyright Vs. Trademark

There’s another kind of registration that companies depend on to protect their intellectual property, and it’s Trademark Registration.

How does Copyright Registration and Trademark Registration differ? In essence, each protects different types of assets.

Copyright is for literary and artistic work, such as books and videos. Trademark protects items that help define a company brand, such as its logo, or the goods (and sometimes services) that company makes.

Because companies want to protect their products and their economic livelihood, they are fierce in registering and protecting trademarks. To that end, there are certain words or phrases you can NOT use in book titles without incurring corporate wrath.

I learned from the late Kate Duffy, one of my first editors, that I couldn’t use the title, “What’s up, Doc?” on my romantic comedy they’d contracted.

Why? What’S Up, Doc?® is a registered trademark used for Printed Matter and Paper Goods, Namely, Books … and owned by Time Warner Entertainment Company.

Kate explained the matter to me, and we agreed to change the title to Just One Look , and the comedy of errors courtship romance has been a huge seller for me ever since it was first published.

Bulletproof Your Title

You don’t want to use a title that is already used by more publishers than you can count. You also don’t want to use a title that is a registered trademark without permission of the trademark owner. If you do, they may unleash their big dog lawyers on you.

If you’re thinking you’re just some small fry, unknown by one and all, so you’re safe, allow me to correct you. They will take you to the cleaners. (By the way, I use Google alerts to keep track of where my name and book titles pop up so you know trademark owners do this too, and they have a whole lot more people guarding their names and trademarks.)

Before you carve your title in stone, here’s what you need to do.

3 Ways To Research Your Title

1. Plug the proposed title into an Amazon Search. I’ll admit that it’s getting harder and harder to find a title that hasn’t been used. Do you honestly want a title that’s got dozens of books with the same one? When you have a list of 5 or 6 titles, move to the second step.

2. Plug the proposed title into a search engine like Google and check the first 2-3 SERP to see what pops up. Take what’s left of your title list and move to step 3.

3. Search the United States Trademark Database for those title phrases. That’s the main page which explains the various options. Scroll down until you find Trademark Electronic Search System (TESS) and you’ll see a big button that says Search Trademarks. Click it and get started.

A Few Tips To Get Started

There are HELP tips on the webpage so just read if you don’t know what to do.

When you do a search, don’t use quote marks around the title the way you do in most searches because one or more of the words in the title might be trademarked but not the entire phrase you want to use.

On the Trademark website, you’ll see in the middle of the page, Basic Word Mark Search which allows searching of the most commonly searched fields: word marks, serial or registration numbers, and owners and is designated New User.

Type in your tentative title, and you’ll discover if the phrase is, or has been, trademarked. Personally, even if it comes up “dead,” meaning not currently registered, I’d play it safe and still not use it because it has once been registered and that may create legal problems for you.

For more information, specifically about movie titles and trademark, read this article by Jonathan L. Handel. Yes, it was published 10 years ago, but I believe the information is still valid.

Takeaway Truth

It’s easier and cheaper to prevent an infringement problem than to fix one.