June 21, 2004

Down and Out of Magic Wisdom

There is a fierce debate raging about the possible rights in a book title. Michael Moore used "Fahrenheit 9/11" as a title for his latest documentary about the American president.

That was an allusion to the title of a book by Ray Bradbury, which is called "Fahrenheit 451".

Apparently Bradbury was not happy about the fact that Moore didn't bother to ask him for permission. That in turn earned Bradbury some harsh words from Cory Doctorow, ("I hate it") Dan Gillmor ("bizarre") and Joi Ito ("stupid").

Doctorow's first Magic Wisdom is that there is no copyright in a title. I agree.

However, there might be a legitimate trademark issue here. German law quite clearly recognizes trademark protection for book titles, see Articles 5, 15 of the German Trademark Act (Markengesetz), here in German.

If, as Gillmor reports, Bradbury has plans for a "Fahrenheit 451" movie, consumers might get confused about which movie is which. Bradbury might even find himself on the receiving end of accusations that _he_ is trying to get a free ride on the popularity of the Moore movie, or his movie might be targeted for boycott activities by anti-Moore wingnuts who don't get the difference.

Therefore, I think that the Magic Wisdom that there is and there should be no protection whatsoever in book titles is somewhat too radical.

A quick Google search on "book, title, protection" comes up with an article on the American law on this question by Lloyd L. Rich. It seems from that article that, while American law is less likely to award protection for book titles than German law, not everyone is free to call their new book on tax law "Gone With The Wind". There _can_ be trademark and unfair competition law protection for single book titles if those have acquired "secondary meaning".

And I agree with the German legislation that avoiding confusion in the marketplace for books is a legitimate interest, just as avoiding confusion in the marketplace for other goods is the legitimate interest served by trademark law in general.

So if book titles might be protected after all, did I need to ask Cory Doctorow if it's all right to allude to the title of his book in the title of this blog entry? (I didn't ask).

If there are readers out there who might confuse a blog entry with a whole novel, yes, I think I would have to clear the rights first. However, while confusion between two movies with similar titles could easily happen, I don't think anyone reading my blog could possibly make such a mistake.

Posted by Karl-Friedrich Lenz at June 21, 2004 11:32 AM | TrackBack