If you have composed a musical work, how can you protect yourself from having others copy your song title or lyrics? If you want to sample somebody else's work or reference a song or lyrics in a publication, how do you avoid violating the rights of the creator of the song or lyrics?
The intellectual property laws that you might be hoping to use to protect your song title are copyright and trademark laws. Your song title will not be protected by copyright law. In unusual situations, part or all of a song title may be protected by trademark law.
Does Copyright Law Apply to Song Titles
Copyright law is intended to protect creative expression through an original work. To gain copyright protection the work must contain a certain amount of original expression beyond a thought, idea, concept or utterance. Names, phrases, titles, catch phrases, mottoes and the like are not deemed to have a sufficient creative element to merit copyright protection.
Although an argument might be made that an extremely long title should be subject to copyright protection, it does not appear that the U.S. Copyright Office has ever found that a title of any length could be successfully registered for copyright protection.1
To the extent that a song title may be subject to copyright protection, it is necessary to look at the entire work, the title along with the song lyrics, as opposed to the title by itself. If a phrase is a readily recognizable by a lay observer as a portion of the copyrighted work, the test for copyright infringement may be satisfied even if only a small portion of the work is reproduced.2
Can You Trademark a Song Title
Trademark law is designed primarily to protect the holder of the mark, but also provides a level of protection to consumers. The use of a mark can reassure a consumer that goods or services are produced by a specific individual or company, and preventing the use of a trademark by others can help consumers avoid being tricked into buying products that are not manufactured, endorsed or approved by the holder of the mark.
Although some phrases, trade names, tag lines and similar short expressions might be subject to protection as trademarks or service marks, it will be highly unusual for a song title to qualify for that type of protection.
In terms of federal trademark protection, the U.S. Patent and Trademark Office (USPTO) will not register a trademark for a stand-alone work. It will permit registration for a trademark associated with a series of works, such as a book series. A song title might gain some level of protection or exclusivity through the inclusion of a trademark in the title, such as a song named after a trademarked character from a famous book or movie, but the protection in such a context would arise from inclusion of that separate trademark.
Unfair Competition Claims
It may be possible to build an unfair competition case for a hit song, based upon a third party's effort to capitalize on the success of the song by releasing a song under the same name or a name intended to make people think of the hit song. For example, an appellate court found that the presentation of the phrase, "Swing, Swing, Swing", in an advertisement for golf clubs, as the famous song, "Sing, Sing, Sing" played in the background, could potentially support a trademark and unfair competition claim by the music company that held a trademark on the song title.3
The Red Hot Chili Peppers filed a lawsuit against Showtime Networks alleging the misappropriation of their song and album title, "Californication", for a TV series. Although most experts did not believe that the case was strong, it apparently settled out of court.
That litigation serves as a reminder that if you try to use a title made famous by somebody else to promote your own work, even if you ultimately prevail, if the originator of the title has the resources to come after you it can cost you a great deal of time and money to defend against their claim.
The Red Hot Chili Peppers would have been in a much stronger position had they built the name into a brand and registered it as a trademark before it was used for the TV series. The late David Bowie, for example, trademarked the name, "Ziggy Stardust" for entertainment services.
Song lyrics are much easier to protect, as most songs have enough lyrics and lyrical complexity that copyright protection is readily available. Copyright protection applies when the lyrics are reduced to a fixed medium, which could involve writing them down, typing them into a computer file, or recording a performance of a song.
For additional protection, the author of the lyrics may register a copyright with the U.S. Copyright Office for a modest fee.
Absent unusual circumstances, producing a new song (or book, or movie) that happens to share a title with a prior, copyrighted work is not going to present a legal problem. Many songs share titles with prior musical works, with no legal implications for the author or obligation to seek permission or to pay royalties.
For a title that the public would associate with a specific hit song or that includes a trademark, reuse of the title may result in claims of a trademark violation or unfair competition. For generic song titles - Jump, Shout, This Time, All at Once, I Need You, Lady, Fire, Crazy, Superstar, Money, and the like - no matter how famous a prior work, use of the same title for a different, original work is fair game.
Trademark law is not intended to make it difficult for people to describe trademarked goods or services. The mention of a song or music group by its name is the most reasonable way to identify the group or song.
- Nominative fair use of a trademark involves using a reference to a trademark to identify the actual goods and services that the trademark holder identifies with the mark.
- Descriptive fair use of a trademark involves using the trademarked word or phrase in an ordinary, descriptive manner to describe a product or service. As long as the use of a song title (or any other title) is referenced for a purpose other than as a mark, and is used in a descriptive sense and in good faith, the reference does not violate trademark law.
- The reference to a trademark may also be deemed protected by the First Amendment if used for purposes such as parody, satire, editorial commentary and other forms of expression.4
The use of song lyrics is more complicated. In some contexts, such as a scholarly analysis of the lyrics, extensive quotation might be protected as fair use. In contrast, using a song verse at the opening of a book chapter, or quotes of lyrics within works of fiction to develop the plot or characters, will typically require that the use be licensed.
In most cases, the portion of a song that an author will want to reference will be the most famous or recognizable portion of a song, strengthening the copyright holder's right to control the use of the lyrics and, if desired, to charge royalties.
As an alternative to quoting lyrics, an author may consider identifying the singer and song title, or referencing the lyrics without directly quoting them. The song, "American Pie", provides a good example of how references may be made to artists, songs and lyrics with almost no direct references to artists, titles or lyrics.
1. It is not necessary to register an original work in order for it to be protected by copyright, but the consistent rejection of efforts to copyright titles reflects that it's difficult, and perhaps close to impossible, to extend copyright protection to a title alone.
2. In 1982 a Texas federal court found that the phrases "E.T. Phone Home" and "I Love You, E.T." were "readily recognizable to the lay observer as key lines of dialogue from the copyrighted movie and, therefore, the test for copyright infringement has been satisfied". Universal City Studios, Inc. v. Kamar Industries, Inc., 217 U.S.P.Q. 1162, 1982 WL 1278 (S.D.Tex.1982). A number of subsequent federal appellate court cases involving similar excerpts have agreed with that conclusion. See, e.g., Murray Hill Publ'ns, Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 636 (6th Cir. 2001).
3. EMI Catalogue P'ship v. Hill, Holliday, Connors, Cosmopulos Inc., 228 F.3d 56 (2d Cir.2000).
4. Although not a use of a song title, the song "Barbie Girl" was found not to violate Mattel's trademark of the name, "Barbie", based upon the use being determined by the court to be nominative fair use and parody. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002).