I was checking to see how my website popped up in search results on various search engines when I came across some disconcerning results. When I searched for ‘The Soul Smith’ you could imagine my surprise when I came upon the book pictured below. My first reaction was anger, my second reaction was anxiety. I immediately dove into this topic and came up with some good news! If you are in the same boat as me, read on!
First, book titles cannot be copyrighted as stated right on the USPTO FAQ page, “Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.” If you are worried if a trademark has already been filed, you can search for it on the USPTO website here: http://tess2.uspto.gov/. Luckily for me, my title wasn’t trademarked. Trademarking, as opposed to copyrighting, requires an application to register the word mark with USPTO. It costs money (I spent $925 on a lawyer to get a TM before), and it took over 9 months to get approved. Whereas with copyrighting, your original work is protected under copyright law as soon as it is written on the page, and it is free. Though, there are some benefits to registering your copyrighted work with USPTO.
But apparently, using (or I should say re-using) the same title is actually pretty common. You can even search the Library of Congress to see for yourself all the books that were published with the same title by different authors: http://eresources.loc.gov/. In 1978, Harper and Knopf both published books titled Continental Drift. In 1984, St. Martins and Knopf both published books titled Pearl. This even happens in the movie industry too. A movie titled Blown Away was released in 1993, and then a different movie with Tommy Lee Jones entitled Blown Away came out in 1994. Check IMDB if you don’t believe me.
Second, if you are a published author, or have been offered a book contract, it should be you and not your publisher, that should retain the intellectual property rights (trademark) to your title. You want to be able to license the use of your trademark, which is when you get paid a royalty or fee to allow other people to use your “brand” to sell merchandise, etc. I just checked, and The Twilight Saga and Game of Thrones are both trademarked. If you foresee film, TV, or merchandise being created as a result of your book, you need to trademark the title of your work.
But remember, just because you can use a book title that’s been taken before, doesn’t necessarily mean it’s a good idea. You can imagine the confusion that might ensue. So if you want to protect the title of your novel without the high cost of a trademark, just keep it a secret until it is published.
Please feel free to leave comments or questions below.