You’ve all heard the phrase “You can’t copyright a title.” Which is true, of course, except for the titles of series such as Harry Potter and the Next Book in the Series, which the Copyright Office has seen fit to protect from those lackluster souls who try to bask in borrowed glory by publishing books called Harry Potter Meets His Biggest Fan, or Harry Potter and the REAL Story of What Happened Behind the Green Door, or Harry Potter Died In My Arms.While all of these are marvelously interesting titles, they are only interesting by virtue of the misappropriation of goodwill that allows us to recognize the name “Harry Potter” and somehow get a sort of muddy happy feeling about any book that bears the name even before cracking the cover and engaging in a critique of the contents. This, of course, is one of the hallmarks of intellectual property crimes – stealing someone else’s great idea to make other people think you are wonderful. As I said, ordinary titles are not copyrightable, however, and thus we have a plethora of books called Laura, Gone With The Wind, The Hound of the Baskervilles, and The Cat and the Hat, all by various authors on different subjects
I jest, of course. Though only a little.
Although the vast majority of novels have unique titles, and we tend not to notice duplicate titles because of the rarity of their appearance, a closer examination of the subject reveals a more disturbing picture than one might expect. By way of example, recent years have given us the following:
Book of the Dead by Douglas Preston (2007)
Book of the Dead by Patricia Cornwell (2007)
Book of the Dead by John Skipp (1990)
Book of the Dead by Tanith Lee (1991)
Book of the Dead by Robert Richardson (1989)
Book of the Dead by Ashley McConnell (2004)
Book of the Dead by Sir E.A. Wallace Budge (1967)
Book of the Dead by Stanley Martin (2009)
Shocking, isn’t it? I came up with another phrase I thought might be a likely title for a murder mystery – Moving Target – only to have Google tell me my brightest ideas have already all been taken (just like all the best URL names). Here’s my instantaneous Google result:
The Moving Target by Ross Macdonald (1949)
The Moving Target by W. S. Merwin (1963)
Moving Target by Elizabeth Lowell (2002)
Moving Target by Stephanie Newton (2009)
Moving Target by Cheyenne McCray (2008)
Moving Target by Lori A. May (2008)
Moving Target by Jack MacClenaghan (1968)
Moving Target by Fran Early (1987)
Moving Target by Carolyn Keene (1993)
Moving Target by Don Pendleton (1989)
Moving Target by Elizabeth Moon (2004)
A Moving Target by David Starr (2003)
A Moving Target by William Golding (1984)
One of the things that strikes me as odd, even at first glance, is that publishing houses have no qualms about putting out competing books with the same titles in the same genre in the same year. Apparently they rely on our inability to notice that two murder mysteries with identical titles are sitting a foot away from each other on the display table, perhaps recognizing that Americans don’t really focus on titles so much as glitzy artwork, and that a change in font can throw off our higher brain the same way a hip swivel can throw off an incoming Green Bay tackle.
Another thing that strikes me as odd is that my perception that duplicate titles were uncommon was completely wrong. All it took was half an hour sampling Amazon.com and Google Books to convince me that my assumption about the state of reality was completely unfounded.
The lesson to take from all this is quite simple. Whatever title you choose, unless it is artfully, intentionally unique in the way of A Heartbreaking Work of Staggering Genius or The Money-Whipped Steer-Job Three-Jack Give-Up Artist, it is likely to be recycled by some other aspiring novelist. If this thought angers you to the point of stabbing the eyes out of your childrens’ Bratz dolls, take a look at the list of names above, and then take heart in the knowledge that unless you are superstar famous, your title is almost certainly being copied by someone who has never even heard of you.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.